Lam Yiu Pang v. Lam Yiu Hoi

HCAP 31/2020

[2023] HKCFI 2884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 31 OF 2020

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D E C I S I O N

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1.The plaintiff (by main action) (and the 1^st defendant (by counterclaim)) (“Pang”); the defendant (by main action) (and the plaintiff (by counterclaim)) (“Hoi”); and the 2^nd and 3^rd defendants (by counterclaim) (“Other Brothers”) are sons of the Deceased. Pang commenced the main action for a declaration that the Deceased died intestate and grant of administration be issued to him. Hoi counterclaimed to propound a will allegedly made by the Deceased in 1998 (“Alleged Will”), by which all her assets were purportedly left to Hoi. The Alleged Will was allegedly lost in a renovation of Hoi’s office in 2015. Hence, Hoi would have had to prove the Alleged Will by parol evidence which was disputed by Pang and the Other Brothers.

2.On 4 October 2023, this court made a consent order (“Consent Order”), whereby the parties agreed, inter alia, that (i) there be a declaration that the Deceased died intestate; (ii) Pang be appointed as the sole administrator for the Deceased’s estate (subject to the Probate Registry’s requirements); (iii) Pang’s claims be discontinued and Hoi’s counterclaims be dismissed; and (iv) the costs of this action be paid by Hoi to Pang and the costs of the counterclaim be paid by Hoi to Pang and the Other Brothers, including counsel’s trial brief.

3.It is evident from the terms of the settlement that Pang and the Other Brothers have prevailed in the main action and the counterclaim. Hoi agreed to bear the costs of the main action and of the counterclaim.

4.Trial briefs have been issued to Pang’s and the Other Brothers’ leading counsel (Mr Bernard Man SC) and junior counsel by 30 June 2023, in anticipation of the trial fixed for November 2023. But Hoi is unwilling to bear the costs of two counsel. Hence, the only outstanding issue for the determination of this court is whether Pang and the Other Brothers are entitled to a certificate for two counsel for the trial of these proceedings.

5.The relevant considerations in deciding whether to grant a certificate for two counsel are well established and set out in Xinyuan Trading Co Ltd v NPH Petrochemical Ltd, HCA 18159/1998 and CACV 276/1998 (unrep, 25/09/2000), at pp 12-13. Master Poon, as the CJHC then was, held that the first step is to ask whether it was necessary or proper to instruct a leading counsel in a given case. In this connection, the following non-exhaustive factors are relevant:

(1)  the nature of the case;

(2)  difficult questions of fact or law;

(3)  the complexity, difficulty or novelty of the issues involved;

(4)  the skill, specialised knowledge or expertise required for the case;

(5)  where money or property is involved, its amount or value;

(6)  the importance of the matter to client;

(7)  the general importance of the case, for example as affecting other cases;

(8)  if a junior counsel has already been instructed, the experience, competency and seniority of that junior;

(9)  whether the other side has instructed a leader.

6.Hoi submits that Pang and the Other Brothers should not be entitled to a certificate for two counsel. In particular, (i) these proceedings did not warrant the instruction of leading counsel, or alternatively, (ii) if the instruction of leading counsel was warranted, it did not justify the instruction of a junior counsel to assist him.

7.In the present case, having taken into account all the relevant factors, I am of the view that these proceedings did not warrant the instruction of leading counsel.

8.First, this action involved no difficult, novel or complicated points of fact or law (cf paragraph 5(1) to (3) above). Although Hoi in the present case sought to propound a lost will, the legal issues involved were not particularly complex or difficult.

9.Second, as the dispute between the parties was factual in nature, no specialised skill, knowledge or expertise was required for the preparation of the trial (cf paragraph 5(4) above), and the outcome of the case did not have any general importance (cf paragraph 5(7) above).

10.Third, although the Deceased’s estate involved substantial assets, the matter did not appear to be of particular importance to Pang and the Other Brothers (cf paragraph 5(5) and (6) above). As pointed out by Hoi, whilst the Deceased passed away on 5 June 1999, this action was only commenced by Pang on 12 November 2020. Indeed, it is Pang’s own assertion in paragraph 23 of his Witness Statement that: “…, as time went by, Cho, Kwan and I started our own respective lives without [the Deceased] and gradually forgot about the Grant of Letters of Administration, without knowing at that time Hoi had not applied for the Grant at all and he did not provide the feedback to us.” I agree it can hardly be said that the matter was important to Pang and the Other Brothers in these circumstances.

11.Fourth, Hoi did not instruct leading counsel in these proceedings, Hoi’s Defence and Counterclaim was settled by junior counsel only (cf paragraph 5(9) above). Further, Mr Danny Tang, the junior counsel instructed by Pang and the Other Brothers, is a competent junior well capable of conducting the trial of this case on his own (cf paragraph 5(8) above).

12.For the reasons set out above, I hold that Pang and the Other Brothers should only be entitled to a certificate for one junior counsel for the trial of these proceedings.

Written submissions by Mr Danny Tang, instructed by Messrs Jones Day, for the plaintiff (by main action) and the 1^st to 3^rd defendants (by counterclaim)

Written submissions by Mr Lai Chun Ho, instructed by Messrs Anthony Siu & Co, for the defendant (by main action) and the plaintiff (by counterclaim)