Huang Meixia v. Leung Hoi Shan and Others

HCMP 2493/2017

[2021] HKCFI 3727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2493 OF 2017

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Before: Hon Wilson Chan J in Court

Dates of Hearing: 6 and 7 September 2021

Date of Judgment: 10 December 2021

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J U D G M E N T

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A. INTRODUCTION

1.This is the adjourned hearing of the summons issued by the plaintiff on 4 December 2018 (amended on 23 October 2020) (the “Summons”), whereby the plaintiff seeks, inter alia, the following:

(1)  Final Judgment be entered for revocation of the letters of administration of the estate (the “Estate”) of the late Huang Xu Zhong (the “Deceased”) granted to the 1^st defendant on 7 November 2011 (the “Grant of Administration”), alternatively for removal of the 1^st defendant as administratrix of the Estate.

(2)  Judgment be entered for an account of the Estate’s assets and the 1^st defendant’s dealings thereof.

(3)  Alternatively, determination as to whether as of the date of the Deceased’s death, (i) the plaintiff was validly married to the Deceased; and (ii) the purported marriage between the 1^st defendant and the Deceased in Hong Kong was invalid, as preliminary issues.

2.The Deceased passed away in Hong Kong on 31 July 2009, without leaving any valid will concerning his Estate in Hong Kong.  It is the plaintiff’s case that she is the lawful widow and relict of the Deceased, having married the Deceased in the People’s Republic of China (“PRC”) on 29 February 1986 (the “PRC Marriage”).  Numerous documents, ranging from a notarized copy of the marriage certificate of the PRC Marriage, to the household registration record of the Deceased and the plaintiff, have been adduced by the plaintiff to support this. It is also the plaintiff’s case that she had 2 sons with the Deceased, a fact which is not disputed by the defendants.

3.Yet, the Grant of Administration was obtained by the 1^st defendant (ie Madam Leung Hoi Shan) as the purported widow and relict of the Deceased pursuant to a purported marriage in Hong Kong on 23 April 1996 (ie over a decade later than the PRC Marriage) (the “Purported HK Marriage”). Further, in applying for the Grant of Administration, no disclosure was made of the 2 sons born to the plaintiff and the Deceased.  The plaintiff’s claim is therefore straightforward: the Purported HK Marriage was invalid under the laws of Hong Kong which at all material times prohibited bigamy, and the Grant of Administration ought to be revoked since it was granted to the 1^st defendant under a false and wrongful basis and as a result of material non-disclosure by the 1^st defendant.

4.On the other hand, the defendants contend that these proceedings were commenced by the plaintiff with the sole and ulterior purpose to exert pressure on the defendants in light of the various disputes and pending litigation between the plaintiff (and her two children) and the defendants in Hong Kong and the PRC in relation to, inter alia, control over the companies previously owned by the Deceased, rather than genuinely for the proper administration of the Estate.  The defendants submit that the plaintiff has full knowledge of the 1^st defendant’s application for the Grant of Administration and consented to it, the Estate has been fully distributed in accordance with agreements entered into between the relevant beneficiaries (including the plaintiff herself and her two children), and for which the 1^st defendant had already provided a full account.  In the premises, these proceedings are arguably an abuse of process, and even if any grounds for revocation can be established the court should not exercise its discretion to revoke the Grant of Administration, let alone on a summary judgment basis when there are significant disputes of facts between the parties.

5.In summary, the defendants case is that the plaintiff’s Summons is fundamentally misplaced and should be dismissed for the following reasons:

(1)  First, the plaintiff has failed to identify any justification for seeking summary determination of only part of the reliefs sought in the Originating Summons, which is inappropriate, will not save time and costs, and not in the interests of the parties and the Estate.  As a matter of proper case management, all issues in the Originating Summons should be heard and determined together, as they are inextricably inter-linked.

(2)  Second, the defendants have clearly raised a believable and arguable defence to the plaintiff’s application for revocation of the Grant of Administration and an order for accounts, which involve triable issues.

(a)  The court’s powers of revocation under section 33(1) of the Probate and Administration Ordinance, Cap 10 (“PAO”) are entirely discretionary, and in particular, ought not be exercised where the requested revocation serves no useful purpose, is made with an ulterior motive and/or amounts to an abuse of the court’s process.

(b)  There are significant factual disputes between the parties on whether the Grant of Administration was in fact made in error, and also on other factual matters which are relevant to the court’s exercise of discretion (even if any ground for revocation can be shown).

(c)  On the defendants’ case: (i) the plaintiff has not proved the essential validity of her PRC Marriage, or that any such alleged marriage subsisted and continued until the date of the Deceased’s death; (ii) the 1^st defendant did not know of the PRC Marriage at the time of applying for the Grant of Administration; (iii) the plaintiff had all along consented to the 1^st defendant obtaining the Grant of Administration and is now seeking revocation purely for an ulterior motive; (iv) the 1^st defendant had already fully distributed the Estate in accordance with agreements reached between all the relevant beneficiaries including the plaintiff herself and provided a full account of the Deceased’s assets in Hong Kong; and (v) even if the 1^st defendant is not suitable to continue as administrator and that the Grant of Administration should be revoked, the court has to consider to whom any new grant should be issued, and the identity of the replacement administrator.  These factual disputes are plainly unsuitable for summary determination.

(3)  Third, the plaintiff’s alternative applications for a separate determination or trial of the “preliminary issues”, whether under Order 14A or Order 33, rules 3 and 4(2) of the Rules of the High Court (“RHC”) also stands to be rejected.  No questions of law or construction have been identified in the plaintiff’s Summons.  Determination of the “preliminary issues” will not dispose of any of the plaintiff’s claims in the Originating Summons but will only lead to wastage of time and costs.

6.After the Summons was issued, the defendants obtained and adduced PRC legal opinion prepared by a Professor 張學軍 (“Ds’ PRC Opinion”), and the 1^st defendant simply asserted that she “does not accept the authenticity” of the documents produced by the plaintiff.  Yet, rather than raising any doubt against the authenticity and validity of the PRC Marriage, Ds’ PRC Opinion fundamentally undermines the defendants’ case: it makes clear that the burden of proof under PRC law is for the 1^st defendant to show why the PRC Marriage was invalid, and that at the moment no such evidence has been located at all to cast doubt on the validity of the PRC Marriage or the relevant documents.

B.     RELEVANT UNDISPUTED BACKGROUND

7.The Deceased passed away in Hong Kong on 31 July 2009, without leaving any valid will concerning his Estate in Hong Kong.

8.The Deceased had a relationship with the plaintiff who bore him 2 sons, namely Huang Bai Xian (“Xian”) and Huang Bai Hui (“Hui”).  At all material times since at least April 1996, the 1^st defendant was aware that Xian and Hui were the sons of the Deceased.

9.The Deceased executed a Chinese will dated 26 July 2009 for his PRC assets (the “PRC Will”). Under the PRC Will, the Deceased’s sister, Huang Jingzi, was appointed as executrix (the “PRC Executrix”).  Clause 2(5) of the PRC Will states that the plaintiff is the wife of the Deceased, whereas the 1^st defendant was not described as such.  The 1^st defendant signed on the PRC Will when executed.

10.The 1^st defendant obtained the Grant of Administration, which was a common form grant, by way of an ex parte application to the Probate Registry.  An affirmation in Form No L1.2a dated 12 July 2011 was filed by the 1^st defendant on 2 August 2011 (re-filed on 28 September 2011) in support of her application (the “Grant Affirmation”).

11.In the Grant Affirmation, the 1^st defendant stated, inter alia, that (i) the Deceased was never married to any person other than the 1^st defendant, and that the 1^st defendant was the lawful widow and relict of the Deceased; (ii) the only persons entitled to share in the Estate were the 1^st defendant, the 2^nd defendant and the 3^rd defendant; (iii) the Deceased had no other children or issue during the whole of his lifetime other than the 2^nd defendant and the 3^rd defendant.

12.After the Grant of Administration was made in favour of the 1^st defendant, the 1^st defendant took steps to administer and/or deal with the assets of the Deceased.  Amongst those assets were shares in seven Hong Kong private limited companies (the “HK Companies”).  The distributions made by the 1^st defendant were in accordance with certain purported agreements and in particular the PRC Will, and not in accordance with the entitlements under Hong Kong intestacy rules.

13.The plaintiff was only provided with a copy of the Grant of Administration and the Grant Affirmation by the 1^st defendant in early 2017.

14.The Originating Summons herein was issued on 6 November 2017 (amended on 30 October 2020).  Revocation of the Grant of Administration and removal of the 1^st defendant as administratrix was sought on 2 distinct and separate bases: (i) revocation on the basis of false statement and/or non-disclosure, pursuant to section 33(1) of the PAO; and (ii) revocation/removal of the 1^st defendant on the basis of her dealings with the Estate and/or failure to discharge her duties as administratrix after the grant, pursuant to section 33(3) and/or (1) of the PAO.

15.The Summons was issued on 4 December 2018 (amended on 23 October 2020).  It sought revocation on the basis that the Grant of Administration was obtained by false statement and/or non-disclosure.

C.     RELEVANT LEGAL PRINCIPLES

16.It is clear that the court has power at the hearing of an originating summons under RHC, Order 28, rule 4 to dispose of the action summarily where there are no triable issues: Re Estate of Chan Yim Mei, HCMP 313/2015 (unrep, 30/03/2017) at [7].

17.Once the plaintiff has prima facie demonstrated on the evidence that he is entitled to judgment, it is then up to the defendant to show that he does have a defence or defences to the claim.  There is in practice little difference between an application for summary judgment in originating summonses and an application under RHC, Order 14: Wing Hang Bank Ltd v Liu Kam Ying And Others [2002] 2 HKC 57 at [10], per Ma J (as he then was); Bank of China (Hong Kong) Ltd v Keen Lloyd Resources Ltd,CACV 1787/2001 (unrep, 8/02/2002) at [17]-[19].

18.A defendant must condescend to particulars; the mere assertion in an affidavit of a given situation by the defendant is insufficient.  The defendant must satisfy the court that his evidence is capable of being believed and that on the basis of such evidence, there is a fair or reasonable probability of the defendant having a real or bona fide defence.  In assessing the credibility of the defendant’s factual case, while the court will not embark on a mini-trial on affidavit evidence, the court is not obliged to suspend its critical faculties and assume that the defendant’s evidence is accurate.  If having regard to inherent plausibility, inconsistency with contemporaneous documents and other compelling evidence, the defence is not credible, the court must say so.  See: Ontone Finance Co Ltd v Leung Siu Kee & Ors, HCA 408/2011, (unrep, 28/02/2012) at [23].

19.As noted by Megarry V-C, “[a] desire to investigate alleged obscurities and a hope that something will turn up on the investigation cannot, separately or together, amount to a sufficient reason for refusing to enter judgment for the plaintiff.”  See: Wong To Yick Wood Lock Ointment Ltd v Sky Harvest Medicine Co Ltd [2018] 3 HKLRD 506at [12].

D.     FINAL JUDGMENT OUGHT TO BE GRANTED IN FAVOUR OF THE PLAINTIFF

D1.    The plaintiff is entitled to final judgment for revocation and account

20.The plaintiff’s case for revocation in the Amended Summons is straightforward.  The Grant of Administration to the 1^st defendant ought to be revoked since (i) it was granted on a false statement; and (ii) there was material non-disclosure by the 1^st defendant when applying for the grant.

21.First, the Grant of Administration was made on a false basis.  The plaintiff has clearly made out at least a prima facie case that the Grant of Administration ought to be revoked, due to it being granted on the false statement that the 1^st defendant was the lawful widow and relict of the Deceased.  The relevant principles are as follows:

(1)  Section 33(1) of the PAO grants power to the court to revoke a grant of representation where the grant “either ought not to have been granted or contains an error”.  As explained by Poon J (as he then was) in Re Estate of Kwan Chung [2013] 6 HKC 29 at [11], [19], in exercising the power to revoke under section 33(1) of the PAO, Hong Kong courts have consistently applied the English case law.  There are 3 main grounds for revocation under section 33(1), namely: (i) false statement - where a grant has been made to a person who was not entitled thereto, either where he has acted in ignorance of the true facts or where he has acted fraudulently, for example, by making a false statement or by concealing some material fact from the court; (ii) supervening defect in grant - where a grant has been properly made, but has subsequently become ineffective and useless; or which, if allowed to subsist, would prevent the proper administration of the estate; and (iii) other cases.

(2)  It is well-established that a grant of representation shall be revoked where it was obtained by a false or incorrect statement.  Thus, where a grant is made to a person falsely claiming to be the widow of the deceased or his next of kin, revocation of grant will be ordered even if such a false claim was not the result of fraud.  See: Williams, Mortimer & Sunnucks, Executors, Administrators and Probate(21^st ed) at §§22-19, 22-20; Tristram and Coote’s Probate Practice (31^st ed) at §§17.07 to 17.11; Re Estate of Kwan Chung, Supra at [10] to [12].

(3)  It should be emphasized that for the purpose of revocation of a grant of letters of administration, a finding of fraud or misconduct on the part of the grantee is unnecessary: Harvey Sin Wai Lee v The Estate of Lee (Li) Sing Hon (李醒漢), Deceased And Anor, HCAP 4/2000 (unrep, 12/03/2021) at [10(6)].

(4)  Further, and importantly, I agree revocation is the only way to rectify a grant of administration which was made to a person thought to be the widow but who turned out not to be so:

(a)  The startingpoint is that the identity of the 1^st defendant being the alleged widow is part and parcel of, and indeed the sole basis for, the Grant of Administration in favour of the 1^st defendant, and the authorities show (without prejudice to the plaintiff’s full rights) that so long as those letters of administration remain in force, they are conclusive evidence that the administrator to whom as next-of-kin a grant is made is in fact next-of-kin, and this is the case even where the grant was not made in contentious proceedings: Williams, Mortimer & Sunnucks at §§34-06, 34-02; Phipson on Evidence (19^th ed) at §§43-10 to 43-14; In Re Ivory (1878) 10 Ch D 372 at 374 (English CA).  The Grant of Administration cannot therefore be simply left as it is, if the 1^st defendant was and is not the lawful widow and relict of the Deceased.  As held by the court in In Re Ivory, Supra, in such circumstances, “the application must be made to that Court to revoke its grant”.

(b)  Yet, the power to amend grants are only for minor errors (such as errors as to address, date/place of death etc) - it cannot be used to correct serious errors: Williams, Mortimer & Sunnucks at §§22-01 to 22-05.  Clearly, the title/identity of the person entitled to the grant, based on which the grant was made, is a fundamental, grave error that cannot be rectified by mere amendment.

22.Applying the above principles to the present case:

(1)  The plaintiff is the lawful widow and relict of the Deceased, pursuant to the PRC Marriage in 1986.  The Deceased and the plaintiff married on or around 29 December 1986 in accordance with PRC law in Shenzhen, the PRC.  They were never divorced.

(2)  The PRC Marriage was confirmed by Huang Jingzi, the Deceased’s younger sister.  She further deposed that all the close family members of the Deceased were aware of the PRC marriage.

(3)  Wong Yuk Ming, the Deceased’s elder brother who made an affirmation in support of the defendants, did not comment on the PRC marriage albeit having read the plaintiff’s 1^st affirmation.  He described both the plaintiff and the 1^st defendant as members of the Wong family.  If the PRC marriage were invalid as contended by the 1^st defendant, one would expect Wong Yuk Ming to have deposed his understanding of the same in his affirmation.

(4)  The existence of the PRC marriage is evidenced by the grand banquet held at 泮溪酒家in Shenzhen on or around 30 January 1988 to celebrate the said marriage. The guests filled around 40 to 50 tables.  The two photographs taken during the banquet clearly show that the occasion was formal and directly related to the marriage: Exhibit HMX-17.

(5)  In terms of contemporaneous documents, the plaintiff has produced, amongst others, (i) a copy of her marriage certificate (the “PRC Marriage Certificate”), which reads “[the Deceased and the plaintiff] 自願結婚，經審查合於中華人民共和國婚姻法關於婚姻的規定，發給此證”; (ii) a copy of a notary certificate certifying the authenticity of the PRC Marriage Certificate “《結婚證書》的原件與前面的複印件相符，原件屬實”; (iii) a PRC legal opinion dated 14 June 2018 and a supplemental PRC legal opinion dated 27 June 2019; (iv) copies of all the records found in the marriage registration file of the PRC Marriage; (v) the household registration record (戶口簿) of the Deceased and the plaintiff in the PRC.  All these show that the PRC Marriage was at all material times formally and substantively valid up to the time of the Deceased’s death.

(6)  Included within the PRC marriage registration records are:

(a)  深圳市上步區福田街道辦事處婚姻登記卡 dated 29 December 1986 with the personal particulars and a photo of the Deceased and the plaintiff printed.  The column for 雙方約定內容 reads “雙方…一致同意辦理登記結婚手續”.  Both the Deceased and the plaintiff signed on the card.

(b)  證明 issued by 深圳市上步區福田村民委員會.  The document notes that the plaintiff had made an application to enter into marriage with the Deceased.  The 委員會 confirmed that the plaintiff had complied with the requirements stipulated by the marriage law and allowed the plaintiff’s application (“我村委查清 [the plaintiff] 符合婚姻法要求，同意他 [sic] 申請結婚，請上級准於辦理婚姻登記，特此證明”).

(c)  Another 證明 issued by 深圳市上步區福田村民委員會.  The document notes that the Deceased had made an application to enter into marriage with the plaintiff.  The 委員會 confirmed that the Deceased had complied with the requirements stipulated by the marriage law and allowed his application (“我村委查清 [the Deceased] 符合婚姻法要求，同意他申請結婚，請上級准於辦理婚姻登記，特此證明”).

(d)  A 深圳市上步區人民醫院體格檢查表 of the Deceased dated 29 December 1986 (ie the date of the PRC marriage).

(e)  A 深圳市上步區人民醫院體格檢查表 of the plaintiff dated 29 December 1986.

(7)  The Purported HK Marriage took place subsequently in Hong Kong pursuant to the Marriage Ordinance (“MO”) in 1995.  It is trite that marriages under the MO are monogamous, and that bigamy is prohibited under Hong Kong law: section 40 of the MO, section 45 of the Offences Against the Person Ordinance, Cap 212.  A purported marriage in Hong Kong (after 30 June 1972) is void if either party was already lawfully married: section 20(1) Matrimonial Causes Ordinance, Cap 179.  As such, the fact that the PRC Marriage between the Deceased and the 1^st defendant was valid at all material times renders the Purported HK Marriage void, ie as if the Purported HK Marriage has not taken place and no status of matrimony has ever been conferred: R v Algar [1954] 1 QB 279 at 287; De Reneville v De Reneville [1948] P 100 at 110.

(8)  This means that it is the plaintiff, not the 1^st defendant, who was and is the lawful widow and relict of the Deceased, such that the Grant of Administration was made on a false or incorrect statement, and must be revoked: Ng Kuk Mui v Yu Bik Fong Rebecca, HCAP 2/1997 (unrep, 29/04/2000) at [55] (per DHCJ Carlye Chu, as she then was).

23.Secondly, the Grant of Administration also ought to be revoked due to material non-disclosure:

(1)  “Non‑disclosure of material facts in an ex parte application for a grant is a well-established ground for revocation”.  It is imperative that the applicant and his legal advisors should make full and frank disclosure of all facts and matters material to the application for grant.  This duty of full and frank disclosure is owed to the court.

(See: Re the Estate of Wong Yuen Leong [2012] 2 HKLRD 124 at [10] - [11]; In the Estate of Kwok Mei Lung, HCMP 302/2018 (unrep, 5/03/2020) at [53])

(2)  The principles of disclosure applicable to applications without notice “apply to applications under the Non-Contentious Probate Rules”.  The applicant for the grant “should have clearly set out the facts as known to him” in his affidavit, especially where he had time to investigate the position.  In circumstances of uncertainty, instead of using a rigid form of words, it would be “far better to summarize the circumstances, and explain the uncertainties”.  See: In the Estate of Kwok Mei Lung, Supra at [53(1)].

(3)  In Re the Estate of Wong Yuen Leong, Supra, the defendant failed to disclose that the deceased’s two sons, who were the plaintiffs in that case, were also entitled to share in the estate when he applied for the grant of letters of administration (at [5]).  In fact, however, the deceased “had relationships with three women who bore him children” including the plaintiffs (at [12]), yet this was “glaringly missing” in the supporting affirmation filed by the defendant, who was at all material times fully aware of those matters.  Jeremy Poon J (as he then was) held that the grant “must be revoked” (at [14]), since by not disclosing the above matters and representing to the court in the way as he did in his affirmation, the defendant “had undoubtedly failed in his duty to make full and frank disclosure to the court when he applied for the Grant” and indeed “had deliberately misled the court”.

(4)  In the present case, there is no dispute that the 1^st defendant was at all material times fully aware that the Deceased had a relationship with the plaintiff who bore him 2 sons.  On her own evidence, she knew of such relationship and the 2 sons even before her Purported HK Marriage.  There is also no dispute that she failed to disclose this in her Grant Affirmation: on the contrary, she deliberately misled the court by positively stating in her Grant Affirmation that the only persons entitled to share in the Estate were herself, the 2^nd defendant and the 3^rd defendant, and that the Deceased had no other children or issue in his lifetime other than the 2^nd defendant and the 3^rd defendant.  The 1^st defendant’s explanation that she was “under the misconception” that she only needed to disclose her own children in the Grant Affirmation, despite the clear wording of the Grant Affirmation and despite the grant being obtained through her solicitors who translated the contents for her, is unbelievable and in any event does not justify non-disclosure.  As such, the Grant of Administration clearly must be revoked.

24.It should be noted that what the 1^st defendant believed to be the relationship between the plaintiff and the Deceased is irrelevant. The plaintiff’s case for material non-disclosure is that the 1^st defendant failed to disclose her knowledge that the Deceased had a relationship with the plaintiff which bore him two sons.  There is no dispute the 1^st defendant has such knowledge all along.  There is still no explanation as to why such information in the knowledge of the 1^st defendant was not disclosed.

25.Assuming the Grant of Administration is revoked, given that the 1^st defendant has admitted to have taken substantial steps in administering and dealing with the Estate, the 1^st defendant should be ordered to produce a proper account and inventory of the assets and administration of the Estate, in order to inform the beneficiaries and the new administrator of the most updated status of the Estate, so as to facilitate handover of administration.  This is in accordance with the general practice: Re Cheng Ki Sang [2009] 2 HKLRD 533 at [9] per Lam J (as he then was); Ng Kuk Mui, Supra at [67].

26.In any event, it is trite that it is the duty of administrators to keep clean, clear and accurate account and to be always ready to render such account when called upon to do so.  To discharge the duty to account properly, there must be production of the relevant supporting documents and receipts, as well as proper breakdown of items.  The only document resembling an account produced by the 1^st defendant is a 1-page summary prepared by accountants regarding sale proceeds of one of the HK Companies with scant particulars and without full supporting documents (together with a table summary prepared by the 1^st defendant).  This falls far short of the requisite standard.

D2.    The defendant’s procedural objections are misconceived

27.The defendants have made procedural arguments that there is no need to issue the Summons for the Originating Summons to be disposed of summarily, and/or that the other reliefs sought, especially for appointment of new administrator, are “inextricably inter-linked” and should be determined together with the Summons.  Such arguments are artificial and ignore the realities of the situation.  They wholly disregard the significance of the revocation issue.

28.First, it is trite that the court can decide the order whereby reliefs sought in an originating summons is determined, and can grant judgment as to only part of the claim: DBS Bank (Hong Kong) Ltd v Hunter Socks & Apparel International Ltd And Ors, HCMP 2241/2016 (unrep, 4/09/2017) at [19], Re Estate of Mok Yuen Kwan, HCMP 1582/2019 (unrep, 14/10/2020).  It is also trite that a summary judgment application can be made in originating summons proceedings: Re Estate of Chan Yim Mei, Supra at [7].

29.Secondly, the revocation of the Grant of Administration is likely to be decisive of the present proceedings:

(1)  The only key relief sought in the Originating Summons other than that set out in the Summons is for appointment of a new administrator (at §2).

(2)  The defendant’s argument that the issue of new grant must be dealt with together with the issue of revocation is wrong as a matter of principle.  Whilst in an application, revocation and appointment of new administrators are normally applied together, it does not mean that court must grant both relief at the same time and cannot grant one relief without the other.

(3)  It is well-established that once the Grant of Administration is revoked, the plaintiff as the widow can make an application to the probate registry for a common form grant of administration, without need for a court order.  The courts have often ordered revocation of grant without appointing a new administrator at the same time: see for example Re Estate of Wong Yuen Leong, Supra and Re Estate of Mak So, HCMP 1236/2018 (unrep, 12/04/2019).  In particular, it should be borne in mind that the parties only consented to revocation in Re Estate of Wong Yuen Leong, they did not consent to appointment of new administrator, and Jeremy Poon J (as he then was) made it clear at [15] that the plaintiffs there may wish to apply for a grant of letters of administration later and his decision on revocation “does not have the effect of determining [the parties’] entitlement to the grant”, such that it was possible for there to be disagreements/differences as to who should obtain the grant.

(4)  The issue of new grant can clearly be dealt with later if necessary.  It will then be for the 2^nd defendant and the 3^rd defendant, who claim to be interested in the Estate as children of the Deceased, to file caveats and/or to take other necessary steps, if so advised: the plaintiff cannot be compelled to continue the Originating Summons simply because the 2^nd or 3^rd defendant may wish to raise arguments against a grant to the plaintiff and/or seek a discretionary grant in favour of an independent administrator.  This is especially so since the only matter raised to cast doubt on the plaintiff’s suitability to act are certain alleged “significant factual disputes” between the plaintiff and the 1^st defendant over management of 4 companies, which would equally render the 1^st defendant unsuitable to act, and yet the 1^st defendant still insist on acting as such.  It is not suggested that there is no one available or appropriate to act as the new administrator - it is just a matter of choosing between different candidates.  For the defendants to argue otherwise is tantamount to saying that unless the appointment of new administrators can be resolved, there cannot be a revocation of any grant.  This cannot be right.

(5)   The other reliefs are simply consequential and ancillary orders/directions to facilitate handover by the 1^st defendant to the new administrator (Originating Summons at §§4-7) - these need not be pursued, unless the 1^st defendant is suggesting that she will wilfully obstruct the handover process and/or wrongfully keep assets belonging to the Estate for herself.  If necessary, such consequential reliefs can be pursued subsequently after revocation/removal, as was the case for example in Kong Colin Chung Ping and Another v Kong Wing On and Others, HCMP 2045/2012 (unrep, 24/02/2015).

30.Thirdly, I accept that even if the Summons does not dispose of the Originating Summons entirely, it ought to be determined first since it will have a direct significant impact on how the other issues ought to be determined:

(1)  Whether the Grant of Administration is revoked will have a fundamental and drastic impact on the burden of proof, the parties concerned, the evidence relied upon, and the arguments to be made, concerning whether a new administrator ought to be appointed, and if so who.  If it is revoked and the 1^st defendant is held not to be the widow, the 1^st defendant is a stranger to the Estate, and has no interest; the 2^nd defendant and the 3^rd defendant will account for less than ¼ of the Estate under the intestacy rules.  The burden would be on them to show why the plaintiff or the plaintiff’s proposed candidate is inappropriate to act as administrator.  On the other hand, depending on the results of the revocation issue, the plaintiff’s standing may be affected, and Xian and Hui may have to be joined as parties.  Given that parties will essentially be placed in diametrically opposite positions depending on how the revocation issue is determined, it is highly unsatisfactory and impractical not to resolve it first before proceeding with other basis for removal/revocation and before deciding who should act as the new administrator.

(2)  Further, once the revocation order is granted, it will save the parties and the court much time and effort since other arguments and evidence for removal of the 1^st defendant under section 33(3) of the PAO need no longer be considered.  Such a reason led A Cheung J (as he then was) inHo Wai Yin And Others v Cheng Suet Yee,HCAP 18/2003 (unrep, 28/06/2005) to order revocation of a grant on the basis of a false statement despite expressly noting that there were numerous outstanding issues to be tried concerning the defendant’s management of the estate: his lordship observed that revocation of the grant at an earlier stage “would, hopefully, reduce or minimise those disputes because once the grant is revoked, the defendant would no longer be responsible for administering the estate and the allegations and complaints against her that are directed to the future would be reduced, if not wholly gone” (at [21] - [24]).  Such rationale applies with equal if not greater force in the present case, since without revocation on the basis of false statement/non-disclosure, there would be lengthy arguments concerning whether the 1^st defendant should be removed due to her failure and/or inability to administer the Estate properly in the past and the future, on which there are numerous factual disputes.  It is clear just on a cursory glance that the disputes will require lengthy submissions and evidence, and would requiring significantly more time/effort than that required to determine revocation for false statement/non-disclosure alone.

D3.    The defendants have not raised any real or bona fide defence

31.The plaintiff submits that none of the matters raised by the 1^st defendant support any arguable defence or relevant triable issue.

32.First, there is no real dispute as to the validity of the PRC Marriage.  Despite the numerous allegations being raised by the defendants, what is conspicuously absent is any real challenge or dispute concerning the validity of the PRC Marriage.  The defendants’ stance is still that they “make no admission” and “do not accept” the validity of the PRC Marriage or the authenticity of the supporting documents.  No factual or legal ground is however raised to doubt the validity/authenticity.  No forgery or fraud is alleged by the defendants.

33.The plaintiff relies on the PRC legal opinion prepared by Mr Wu Yingpeng, a PRC-qualified lawyer.  He explains that:

(1)  The burden of proof under PRC law is on the party which asserts (誰主張誰舉證): §6.  Applying this principle here, it is for the plaintiff to prove the existence of the PRC marriage.  To make out her case the 1^st defendant would have to prove the non-existence or the invalidity of the marriage: §7.

(2)  In the absence of evidence capable of disproving evidence raised by the other party (足夠的依據否定對方證據), the People’s Court should consider the factual matrix (結合案件情況) and accept (予以確認) the evidence that carries stronger evidential value (證明力較大的證據): §9, citing《最高人民法院關於民事訴訟證據的若干規定》section 73(1).

(3)  Specifically, on marriages, in the Mainland a marriage certificate stands as direct evidence of the marriage: §10, citing《中華人民共和國婚姻法》 section 8. An alternative basis is to treat marriage registration as a form of 行政確認 of the fact of marriage.  A registered marriage is to be presumed as lawful and valid: §11 and is admissible as evidence in litigation: §12.

(4)  To sum up, the marriage certificate is sufficient in proving the validity of the marriage unless disproved by contrary evidence: §§13; 15.  By adducing the marriage certificate, the documents in the marriage registration files and the affirmation evidence of herself and Huang Jingzi, the plaintiff has discharged her burden of proof: §14.

34.On the other hand, the defendants seek to draw support from Ds’ PRC Opinion.  Yet not only does Ds’ PRC Opinion not provide any support for the defendants nor lead to any triable issue, on the contrary it is wholly consistent with the plaintiff’s PRC Opinion, and completely undermines the defendants’ case:

(1)  Ds’ PRC Opinion at §15 expressly states that the notary certificate produced by the plaintiff has the purpose of certifying that the copy of the PRC Marriage Certificate adduced is the same as the original.  This removes any doubt concerning authenticity.

(2)  Ds’ PRC Opinion at §17(1) and §17(2) then makes an important point: that in light of the available documents and evidence, the plaintiff has already adduced sufficient documents to discharge her burden of proof in proving the validity of the PRC marriage, and the burden of proof is now on the defendants to produce contrary evidence to undermine the validity of the PRC Marriage and/or to show that the PRC Marriage has been terminated or that the Deceased and the plaintiff had divorced, otherwise the PRC Marriage would be deemed valid:

“...根據本段上述法律規定，除非有足以推翻上述檔的相反證據，否則上述檔可以推定黃美霞和黃旭忠的婚姻關系成立。

…同样根据上述规定，若该案的被告人主张黄美霞和黄旭忠的婚姻关系不成立或无效，则对此负有举证责任。根据《诉讼法解释》第九十一条，在黄美霞证明了产生法律关系的基本事实(即黄美霞和黄旭忠的婚姻关系成立)的情形下，若该案的被告人主张该法律关系变更和消灭(即黄美霞和黄旭忠离婚)，则被告人对此负有举证责任。”

This is identical to the conclusion in the plaintiff’s PRC Opinion.

(3)  There is then a conspicuous absence of any reference to contrary evidence to show that the PRC Marriage was invalid.  Not the slightest evidence has been produced to undermine the validity of the PRC Marriage.  There is no evidence whatsoever to show that the Deceased and the plaintiff had divorced - on the contrary, the household registration record of the Deceased shows that the Deceased was the household head (戶主) at all material times, that the plaintiff was the wife of the Deceased, and that the plaintiff was never separated from the household of the Deceased.  As noted above, the plaintiff has also adduced copies of all the documents found in the marriage registration file in the PRC which have been sealed/chopped by the authorities to certify authenticity - there is absolutely no record of a divorce or that the PRC Marriage is invalid.  According to Ds’ PRC Opinion at §17(5), from these it can be determined that Deceased and the plaintiff never divorced.  See also the plaintiff’s PRC Supplemental Opinion confirming this.

(4)  Ds’ PRC Opinion at §§17(3) - (4) at first sight seem to assist the defendants as it suggest that the defendants may have difficulties in accessing documents in the marriage registration file in the PRC.  Yet it then immediately follow up by stating that under PRC laws, third parties such as the defendants can inspect the marriage registration file for “reasonable purpose” and confirms that the defendants can seek inspection, even if such access is relatively laborious and time-consuming.  There is no evidence that the defendants were actually refused such access.  On the contrary, such a point is now purely academic since copies of all the records and documents in the PRC marriage registration file have now been produced by the plaintiff (which is actually one of the solutions suggested in the defendants’ PRC Opinion at §17(5)).  In any event, inconvenience in collecting evidence does not reverse the burden of proof as a matter of trite PRC law: the plaintiff’s Supplemental PRC Legal Opinion, §16, and this is not disputed in Ds’ PRC Opinion.

(5)  Ds’ PRC Opinion at §§10, 17(6) observed that there should be document to show the health conditions of the Deceased and the plaintiff satisfied the pre-requisites for a valid marriage.  The health certificates are found in the marriage registration file documents, which concluded that the health of both the Deceased and the plaintiff were normal (正常).  There is not the slightest hint of evidence to suggest there was any problem with the health conditions of the plaintiff or the Deceased at the time of the PRC Marriage.

35.Importantly, despite raising a cloud of suspicions, there is no evidence that the defendants ever tried to set aside the PRC Marriage or the supporting PRC Marriage Certificate in the PRC or otherwise.  It is not for this court to set aside the PRC Marriage on its own accord in light of the available evidence.  On any analysis, with a valid PRC Marriage Certificate, the authenticity is not challenged, until and unless the same is set aside in the appropriate forum, there cannot be any factual dispute as to the validity of the PRC Marriage.

36.In light of the above, there is clearly no serious dispute regarding the validity of the PRC Marriage.  In the words of Megarry V-C (see paragraph 19 above), the defendants’ assertions amount to no more than “[a] desire to investigate alleged obscurities and a hope that something will turn up on the investigation”.  The defendants cannot hope to avoid judgment simply by raising a cloud of doubt.

37.The plaintiff’s case in relation to the PRC Marriage is simple.  The plaintiff’s PRC Marriage Certificate decisively evidences the PRC Marriage.  Given the defendants have never challenged the PRC Marriage in the PRC, it is not for this court to do the same, especially in the absence of any real argument that casts doubt on the PRC Marriage’s authenticity.

38.The strength of the plaintiff’s case in this regard is obvious as the defendants have not attempted any explanation as to why the PRC Marriage Certificate is invalid.  Rather, the defendants’ have resorted to conjuring up a cloud of baseless objections ranging from (i) technicalities concerning whether the plaintiff and the Deceased contracted any venereal diseases before marriage, despite the plaintiff adducing body check-up reports concluding that the Deceased and the plaintiff were of normal health conditions at the time; (ii) questioning the formalities of the plaintiff’s notary certificate and (iii) doubting, without any basis in support, the authenticity of the PRC records that supported the PRC Marriage, despite no fraud or forgery being alleged (given the complete lack of basis for alleging such).  More importantly, these arguments are contradictory to the defendants’ own PRC Opinion at §§15 and 17 confirming that the PRC Marriage is valid based on the available evidence unless the defendants can adduce contradictory evidence, which the defendants clearly have not.

39.The defendants also sought to rely on the presumption in favour of the Purported HK Marriage.  This is illogical and circular - it is unclear why the presumption does not equally apply in favour of the earlier PRC Marriage: see L v C [2007] 3 HKLRD 819 (CA) at [167] per Kwan JA (as she then was). There is no doubt as to the validity of the earlier PRC Marriage in the present case as “one of the parties to the marriage is still alive and has presented evidence to the court asserting a valid marriage”: see L v C at [94] per Stock JA.  The defendants have not raised any countervailing evidence to the contrary.  That is sufficient to dispose of the defendants’ complaint on this ground.

40.Second, the defendants’ argument that the Grant of Administration need not be revoked even if granted on a false statement, and/or material non-disclosure is wholly misconceived.

(1)  For the reasons set out above, if in fact the plaintiff is the lawful widow and relict of the Deceased and not the 1^st defendant, the Grant of Administration has to be revoked, and it is contrary to principle to suggest that a grant made on a false/misleading statement should be left intact.  There is no other method to rectify this other than by way of revocation.  That should be the end of the analysis.

(2)  Whether or not the court technically has a discretion as to revocation is beside the point.  To not revoke the grant would mean leaving a false public record obtained by material non-disclosure on the court’s file, thus usurping the plaintiff’s rightful status and title as widow, for the rest of the 1^st defendant’s life.  This cannot be right.  A survey of reported Hong Kong authorities reveals that the courts have consistently revoked a grant which should not have been granted in the first place.  It is not the court’s practice in such cases to conduct a balancing exercise afresh and consider all relevant factors as if it were exercising its discretion in the strict sense.

(3)  The defendants’ argument in this regard confuses and conflates the power of revocation under section 33(1) PAO and the power of removal under section 33(3) PAO, and between the different basis for revocation.  The revocation sought in the present application on the basis of false statement and/or material non-disclosure is on the ground that it ought not to have been granted in the first place (section 33(1)). On the other hand, the other issues raised in the evidence of the parties concerning propriety of the 1^st defendant to act as administratrix only go towards the power of removal under section 33(3) and/or revocation for supervening defects.  Matters such as how the Estate had been administered, or allegations concerning what happened outside the application of grant process, are irrelevant to the revocation sought in the present application.  Taking the defendants’ case at the highest, they are only arguing that the 1^st defendant should be entitled to a re-grant after the Grant of Administration has been revoked.

41.Not a single Hong Kong authority has been cited by the defendants where the court has refused to revoke a grant which should not have been granted in the first place on the ground that the grant was obtained on a false statement and/or the grantee did not have the status he/she purports to have - the only authority cited by the defendants for this point is the very exceptional and extreme case of Willis v Earl Beauchamp (1886) 11 PD 59.  I agree with the plaintiff’s submission that the defendants’ relianceon this caseis misplaced.  The facts of that case were extreme: revocation in that case was not granted as (i) the deceased died some 90 years ago; (ii) the grants sought to be revoked were made some 90 years and70 years prior to the application respectively; (iii) importantly,the grantees had “long since died” (at p 61) and thus the grant was already extinct, such that revocation was unnecessary; (iv) the applicant was not alleging that his relationship with the deceased was inconsistent with that of the grantee; he was simply saying that he was a “closer relative” (see p 61); and (v) a statute specifically barred any action to displace the grantees’ acts given the vast time lapse: see pp 62, 64.  That case is obviously far removed from the present case, where the 1^st defendant is still alive; where the plaintiff’s status and title as widow would be directly inconsistent with the 1^st defendant’s purported status as widow; where there is no relevant statute barring any action in relation to the 1^st defendant’s acts; and where there is good reason for revoking the grant.

42.The defendants further attempt to argue against revocation by suggesting that the Grant of Administration cannot be “conclusive evidence” that the 1^st defendant is the widow of the Deceased.  This is not correct.  As stated in Spencer Bower and Handley: Res Judicata (5^th ed) at [10.26]: “Letters of administration are conclusive in rem as to the fact of the grant, and that the applicant is entitled to it and, where applicable, is one of the next of kin”.  The 1^st defendant’s status as the Deceased’s widow was clearly a point that was decided in obtaining the Grant of Administration, since it formed the basis of the same.  Consequently, the Grant of Administration is conclusive evidence of the 1^st defendant’s status as the Deceased’s widow.

43.Further still, the defendants allege that the current proceedings are an abuse of process.  This complaint is not made out even based on the single case cited by the defendants, namely JSC BTA Bank v Ablyazov (No 6) [2011] 1 WLR 2996.  Not only was that case decided in a completely different context, but even taking the defendants’ case at its highest, even if proceedings are brought for an ulterior motive, so long as the plaintiff pursues one legitimate purpose, it will not be an abuse of process: see JSC BTA Bank at [22].  The revocation of the Grant of Administration to correct the false information therein and reflect the plaintiff’s lawful status as the Deceased’s widow clearly constitutes a legitimate purpose.  There is no evidence to support the defendants’ contention that the current proceedings “would not have been commenced at all but for the ulterior purpose”.  

44.Third, whether or not the plaintiff has notice/knowledge of the Grant of Administration prior to it being made to the 1^st defendant is immaterial.  A substantial portion of the defendants’ affirmations repeats the same allegation: that the plaintiff has prior notice/knowledge of the Grant of Administration and/or even agreed to the 1^st defendant obtaining such, and is estopped from complaining.  Such allegation is devoid of merits:

(1)  Despite the defendants referring to some 20 documents/agreements signed between various parties, not a single document show that the plaintiff gave consent to the 1^st defendant to obtain the Grant of Administration, or that the plaintiff had prior knowledge.  The only document relied on by the defendants, namely the meeting record dated 27 April 2010 in Exhibit LHS-9, makes absolutely no reference to the 1^st defendant obtaining the Grant of Administration - it only refers to the 1^st defendant handling and dealing with transfers of shares in the HK Companies to various persons - the only words relied on by the defendants are the words (“由梁凱珊負責將上述每個公司的股權辦理到給…”) in the meeting record in LHS-9.  This was understandable: the Deceased was known to have shares in at least 7 companies incorporated in Hong Kong, the 1^st defendant was a registered shareholder (and in most cases the only other registered shareholder besides the Deceased) of all these HK Companies.  It is fanciful to say this shows agreement to the 1^st defendant acting as the administratrix, let alone as the widow of the Deceased.  On the contrary, the understanding all along was that parties expressly agreed to assist the PRC Executrix in distributing the shares in both the HK Companies and companies in the PRC.  The real nub of the defendants’ complaint is that agreements have been signed consenting/agreeing to distributions of certain assets - that is clearly separate and distinct from consenting/agreeing to the 1^st defendant obtaining the grant, and is at best a matter to be raised (without prejudice to the plaintiff’s full rights) if and when those distributions are challenged by the new administrator.

(2)  More importantly, there is not the slightest support to show that the plaintiff specifically agreed to the 1^st defendant obtaining the Grant of Administration by purporting to be the lawful widow of the Deceased and/or by concealing the fact that Xian and Hui were the sons of the Deceased.  There is no evidence that the 1^st defendant ever informed the plaintiff of the Purported HK Marriage prior to the Grant of Administration.  Indeed, there is no serious dispute that the plaintiff only became aware of the contents in the Grant Affirmation in early 2017, shortly before the present proceedings were issued.  All that the defendants are alleging is simply that the plaintiff had knowledge and/or given consent to the 1^st defendant to apply for grant of administration, which taken at its highest is clearly insufficient to show that the plaintiff acquiesced in or consented to the false statements and/or non-disclosure.  In any event, insofar as it is suggested there was an agreement for the 1^st defendant to obtain a grant by way of false statement, this would obviously be illegal and unenforceable, and cannot be taken into account.

(3)  As a matter of law, an action for revocation of grant is of the nature of an action in rem and the court’s function is inquisitorial, such that the court will make a positive finding as to who is entitled to representation.  The inquisitorial nature of the jurisdiction “would prevent the court from accepting as true facts which on grounds of estoppel or misconduct would otherwise be found false or apply any legal consequences other than those which would follow from the true facts”: Vervaeke v Smith [1983] 1 AC 145 (HL) at 157D (per Lord Hailsham).  This is especially where the false statement involved concerns the validity of the grantee’s marriage: neither delay nor conduct presents a bar to a decree of nullity, and a case of estoppel cannot be raised in the case of a void marriage; see Hayward v Hayward [1961] P 152 at 158; Corbett v Corbett [1971] P 83 at 108; Vervaeke v Smith, Supra.  Both as a matter of principle and policy, the Grant of Administration cannot be sustained.

(4)  Insofar as the defendants would seek to rely on laches and acquiescence, the established legal position is that it is only “extreme cases of laches and acquiescence” that may bar a probate action, and only “where the action is frivolous and vexatious”, whereas “mere delay in instituting proceedings is not enough”: Williams, Mortimer & Sunnucks at §8-04; Re Flynn [1982] 1 WLR 310 at 318; Dickman v Holley [2013] NSWSC 18 at [140] - [143].  Indeed, the defendant has a heavy burden to show that it is frivolous, vexatious or an abuse of process, and the English Court of Appeal refused to strike out a probate action even where the claim was commenced some 54 years after the death of the deceased, where the whole of the estate (save for minor exception) has been distributed, where the plaintiff had been fully aware of all the true facts some 36 years ago: Re Coghlan [1948] 2 All ER 68, at 73, 76.  The facts of the present case are nowhere near that extreme.  Further, given the strong merits of the plaintiff’s case, it can hardly be suggested that the plaintiff’s claim is frivolous or vexatious.

(5)  More importantly, the key element to establishing any estoppel is to show detrimental reliance.  There is no evidence of how the defendants have suffered detriment by obtaining the Grant of Administration.  Mere change of position, and/or that the estate assets have been distributed and spent by beneficiaries, and/or the possibility of a potential claim for recovery of a benefit obtained as a result of the reliance, is not sufficient: Kong Colin Chung Ping And Another v Kong Wing On And Others, CACV 69/2015 (unrep, 11/11/2015) at [35] - [38]; Dickman v Holley, Supra at [143].  Here, the 1^st defendant has actually benefitted by obtaining the Grant of Administration, since it gave her control over the property and assets of the Estate and allowed her to distribute assets to herself, and a larger portion of the Estate to her children, the 2^nd defendant and the 3^rd defendant, which they would not otherwise be entitled to under Hong Kong intestacy rules.

45.In short, there is no authority in support of the proposition that the plaintiff’s prior knowledge or consent can prevent revocation of the Grant of Administration.  This is clearly untenable in view of the court’s inquisitorial function and the public policy in favour of removing a false public record concerning the validity of the grantee’s marriage.  The defendants’ suggestion that these proceedings are an abuse of process is again untenable for the reasons mentioned above.

46.Fourth, the defendants’ assertions that administration of the Estate has been completed is factually wrong and legally irrelevant.  There are clearly legitimate reasons for the plaintiff to seek the revocation of the Grant of Administration and determination of the 1^st defendant’s interest/title, and it is apparent that administration of the Estate is far from complete:

(1)  To allow the plaintiff to assert and protect her title and status as the lawful widow and relict of the Deceased, which she may not be able to do so otherwise, for the reasons already set out above.  This is especially so since unless there is revocation or removal, it appears that the 1^st defendant would hold the erroneous title for the rest of her life: Williams, Mortimer & Sunnucks at §65-06.

(2)  To deal with assets still vested in the name of the Deceased, including shares in one of the HK Companies, Xulian Industrial (Group) Holdings Ltd - in respect of which the 1^st defendant has not produced any accounts.

(3)  To determine how the Estate ought to be distributed, and to allow for recovery of assets which have been or may have been wrongfully distributed.  This includes monies in the Deceased’s bank accounts which on the defendants’ own admission were given to herself on her own decision, and assets distributed pursuant to alleged agreements, including certain shares transferred to the 1^st defendant, and certain shares held by the Deceased in Max Luck Technology Development Ltd transferred to a third party without consideration and without the plaintiff’s consent.

(4)  To conduct proper investigations into the affairs of the Estate and obtain independent records from banks etc, and to make such claims as may be necessary.  No full and proper accounts, and no final administration accounts, have been prepared or provided to the beneficiaries, and substantial sums have not been properly accounted for.

47.In any event, insofar as the defendants argue that revocation should not be granted if there is nothing left to administer, this is wrong as a matter of legal principle:

(1)  It is trite that the court can revoke a grant even after the death of the grantee or the cessation of the grant: Williams, Mortimer & Sunnucks at §22-32; Tristram & Coote at §17.37.  Where the status of the administrator which forms the sole basis for obtaining the grant of administration is false, the court would order revocation of the grant since “letters of administration are conclusive evidence that the administrator to whom as next-of-kin a grant is made is in fact such next-of-kin”, and revocation has a useful purpose in “truly reflecting the Judgment made by the court”: Harvey Sin Wai Lee, Supra at [10(5)].

(2)  Consistent with this, section 3(2) of the PAO expressly allows for a grant to be made even where the deceased person has no estate.

(3)  It is therefore clear that even if the grant has no practical use (which, as submitted by the plaintiff, is not the case in the present case), revocation can still be ordered, and such reasoning apply with even greater force to the present case where the grantee is still alive.

48.Fifth, as to allegations that the 1^st defendant was not aware of the PRC Marriage and/or was told by Deceased that he was not married, the 1^st defendant’s alleged lack of knowledge of the PRC Marriage, and/or belief as to the validity of the Purported HK Marriage are simply neither here nor there.

49.Sixth, the 1^st defendant has made several allegations as to why the PRC Will is invalid.  The invalidity of the PRC Will does not assist the defendants in resisting revocation on the basis of false statement/non-disclosure.

50.Seventh, in her affidavit evidence, the 1^st defendant sets out various allegations concerning disagreements arising from the control and operations of the HK Companies.  At most, they only concern removal under section 33(3) of the PAO, and are irrelevant to revocation sought in the Summons.

51.Eighth and finally, regarding allegations concerning the 1^st defendant’s dealings with the Estate, the bulk of the defendants’ evidence consists of allegations concerning how the 1^st defendant had dealt with and administered the Estate.  All these are irrelevant towards the revocation sought under the Summons.  On the other hand, there are numerous disputes concerning this, which highlights the need for an order of revocation to be made in order to avoid putting the court and the parties through the unnecessary time and expenses of considering the arguments/evidence for removal of the 1^st defendant based on her dealings with the Estate after the grant.

52.As a result of this court coming to the conclusion that the Grant of Administration should be revoked, it is unnecessary to consider the plaintiff’s alternative claim, or the defendants’ procedural objections to the alternative claim.

E.     CONCLUSION AND DISPOSITION

53.By reason of the matters set out above, the Grant of Administration should be revoked, and the 1^st defendant should produce an account of her dealings relating to the Estate.

54.I make an order in terms of paragraph 1(1)(a) and 1(2) of the Summons, for revocation of the Grant of Administration, together with order for accounts.

55.I order that the costs of and occasioned by the present application, including all costs reserved, be borne by the defendants personally without recourse to the Estate, given the defendants’ strenuous defence of the proceedings for their own benefit.  Such costs are to be taxed on the party-and-party basis (with a certificate for 2 counsel) if not agreed.

56.The above order as to costs is nisi and shall become absolute in the absence of any application within 14 days to vary the same.

57.Lastly, I express my gratitude to counsel on both sides for their helpful assistance in this matter.

Mr William Wong, SC, leading Mr Kerby Lau, instructed by Messrs Yip, Tse & Tang, for the plaintiff

Ms Sara Tong and Mr Victor Lui, instructed by Messrs William W L Fan & Co, for the 1^st to 3^rd defendants