Ho Wai Yin and Others v. Cheng Suet Yee

HCAP 18/2003

[2023] HKCFI 2690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 18 OF 2003

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REASONS FOR DECISION

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1.On 10 October 2023, I granted an order releasing the Defendant from an undertaking as recorded in the Order of Deputy High Court Judge Jat SC (as he then was) dated 16 April 2004 (“the April 2004 Order”), wherein she had undertaken that pending judgment or further order, she would not sell, mortgage, charge, incumbrance or otherwise deal with inter alia a landed property known as Workshop No. 9 on 16^th Floor, Fullagar Industrial Building No. 234 Aberdeen Main Road, Hong Kong (“the Property”).

2.The undertakings given in relation to the said April 2004 Order concerned more than just the Property, but the Defendant only sought to be released from this particular aspect of it. The said undertakings had been offered up by the Defendant in the course of what was at the time hotly contested interlocutory proceedings between the Defendant and the Plaintiffs.

3.For the purposes of the present application, it is unnecessary to delve deeply into the background of the proceedings, save to note that it was in essence a probate matter that involved a contest over the estate of a Cheng Fong, the deceased; the relief sought being to revoke the grant of Letters of Administration that had been granted to the Defendant and to have Letters of Administration granted instead to the 1^st to 3^rd Plaintiffs.

4.However, the substantive matter has lain essentially dormant since May 2007.  By that stage, pleadings, witness statements and expert reports had been exchanged. For reasons not entirely clear to the Court, no further steps had been taken since then, save that on 17 January 2023, the Defendant had filed a notice of intention to proceed.

5.The matter originally came before me on 22 September 2023.  At that hearing:

(1)  Counsel for the Defendant, Ms Colette Wong, submitted that there had been a material change of circumstances in that (a) the case had been idle for over 15 years and there was doubt as to whether the Plaintiffs would proceed or not; and (b) the Defendant was in financial difficulties and could not proceed in her defence after having been refused Legal Aid.  In so doing, she relied upon the trite principles for discharge of undertakings as summarized in Hong Kong Civil Procedure 2023, §29/1/36 and Wang Linping v Huang Keqin [2020] HKCFI 256.

(2)  In the evidence in support of the application, it was confirmed by the Defendant that the undertaking in question had been offered up essentially as a form of security at the time, but that the Property was not part of the estate in dispute.  That latter aspect (the estate) was still sufficiently protected by other aspects of the orders and undertakings that had been made and offered in the course of the interlocutory proceedings fought in the period 2003 to 2005.  It was her case that the Property had been acquired by her using her own funds, and was not part of the substantive dispute.

(3)  Messrs Peter Mo & Co, the solicitors on record for the 1^st and 2^nd Plaintiffs from the very beginning, had appeared, but indicated that they had no instructions in respect of the present application. Upon inquiries made by the Court, they had confirmed their understanding (upon prior instructions) as to the Defendant’s version of events insofar as the acquisition and ownership of the Property was concerned.

(4)  Certain of the 3^rd Plaintiffs appeared in person, indicating that they opposed the application generally, but being unable to provide any further basis or evidence to substantiate the opposition. They also indicated, upon the Court’s inquiries, that the 1^st and 2^nd Plaintiffs were deceased.

6.In view of the position of the 3^rd Plaintiffs that had attended the original hearing, and the lack of clarity surrounding the status of the 1^st and 2^nd Plaintiffs, I adjourned the matter to 10 October 2023, giving directions for the filing of evidence in opposition by the 3^rd Plaintiffs should they so desire. The deadline for doing so passed, and they did not file any evidence. Nor did they attend the adjourned hearing.

7.In the circumstances, and in the absence of any further opposition, I was satisfied that it would be just and appropriate to release the Defendant from this limited part of her undertakings.  I also noted to both teams of legal representatives that it was not ideal that the matter stay dormant for such a long time, and that steps should be taken to attend to this state of affairs.  Both Ms Wong and the representative of Peter Mo and Co indicated their agreement with this.

8.I thank counsel and Mr Chung of Peter Mo & Co for their assistance.

Mr Chung Lim Tung of Peter Mo & Co, for the 1^st and 2^nd Plaintiffs

The 1^st to 3^rd named 3^rd Plaintiffs appeared in person on 22 September 2023 and did not appear on 10 October 2023

The 4^th to 5^th named 3^rd Plaintiffs were not represented and did not appear

Ms Colette Wong, instructed by O Tse & Co, for the Defendant