Ang Jimmy Tjun Min v. Ang Eileen and Another

HCMP 94/2022 & HCMP 322/2022

(HEARD TOGETHER)

[2023] HKCFI 3120

HCMP 94/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 94 OF 2022

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AND

HCMP 322/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 322 OF 2022

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(HEARD TOGETHER)

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J U D G M E N T

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BACKGROUND

1.The background of the case has been set out by Deputy High Court Judge H. Au-Yeung in his decision dated 2 May 2023 in HCMP 598/2021 (“DHCJ Au-Yeung’s Decision”), which I gratefully adopt.

2.Ang Tiong Loi (the “Deceased”) passed away on 4 February 2008. The Deceased and Madam Tjiang Giok Moy (“Mother”) had two children, Ang Jimmy Tjun Min (“Jimmy”) and Ang Eileen (“Eileen”). Eileen’s husband is Khoo Chun Kim (“Jeffrey”).

3.By the Deceased’s will dated 30 January 2008 (the “Will”), Jimmy and Eileen were appointed executors and trustees of his estate (the “Estate”). Under the Will, Mother was bequeathed 50% of the Estate, whereas Jimmy and Eileen were bequeathed 25% of the Estate respectively.

4.Jimmy obtained probate on 14 May 2008 with power reserved to Eileen to apply for and obtain double probate.

5.On 12 July 2021, Eileen applied to the High Court of Hong Kong for double probate of the Will.

6.By Originating Summons filed on 29 April 2021 (the “Originating Summons”), Jimmy applied for a Beddoe Order to the effect that he, as the executor of the Estate be at liberty to commence an action against Eileen, Banner (China) Investment Company Limited (“Banner”) and Leebury Investments Limited (“Leebury”) on behalf of the Estate to recover the shares of East West Bankcorp (the “EWB Shares”) (or their value) (“the Intended Action”).

7.The Originating Summons had been adjourned pending the determination of the present applications.

PRESENT APPLICATIONS

8.The present applications are cross-applications to remove executors of the Estate of the Deceased:

1)  In HCMP 94/2022, Jimmy seeks to, inter alia, remove Eileen as a named executrix of the Estate with power reserved ("Jimmy's Application");

2)  In HCMP 322/2022, Mother seeks to, inter alia, remove Jimmy as the proving executor, or alternatively for a substitute administrator to be appointed in lieu of both Jimmy and Eileen (“Mother’s Application”).

9.After written submissions were received, it became clear that Jimmy’s Application was no longer opposed by Eileen in the sense that she was content for an independent administrator to be appointed in place of Jimmy. However, Mr Fung SC, leading counsel for Eileen, clarified that if Jimmy were to remain as the executor and no independent executor were appointed, then no concession would be made on Jimmy’s Application.

10.The hearing thus proceeded on that basis with parties’ arguments focusing on Mother’s Application.

LEGAL PRINCIPLES

11.Parties agreed to the applicable principles which are trite, but placed their emphasis on different aspects of the principles.

12.Under section 33(3) of the Probate and Administration Ordinance (Cap 10) (“PAO”), the Court may remove a personal representative if satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so require.

13.In terms of the Court’s exercise of discretion under section 33(3) of the PAO, Eileen relied on Au-Yeung J’s summary in Ho Suen Chang v Ho Hin Cheung[1]:

“26. The Court’s discretion under section 33(3) of Cap 10 is wide. The exercise of its discretion is not necessarily premised on a finding of misconduct on the part of the personal representative. It is an assessment of the court having regard to all the relevant circumstances of the case and involves an element of value judgment on the part of the first instance judge: Tsang Wing Kwai v Tsang Wing Fai (No.2) [2019] 1 HKLRD 1300, §§26-27, Lam VP.

27. It is well-established that friction or hostility between an executor and a beneficiary alone, without more, is of itself not a good reason for removing the executor. No corrupt or improper motive is to be imputed against the executor even if mutual hostility, without more, is established. However, if the hostility is grounded on the mode of administration, then it is a factor that cannot be ignored because the expeditious and economical administration of the estate is always one of the objects that the Court keeps in mind. Thus, if by reason of the hostility, the executor is rendered unfit to perform his duties as executor, he may be removed. Such inability to perform his duties as executor may be proved if it can be demonstrated that he would, say, by reason of the hostility, (a) administer the estate in a manner not in accordance with the law; or (b) obstruct the due administration of the estate. The Court may also pass over the executor if the breakdown of relations has caused or has the potential to cause difficulty in the administration of the estate. See Re Loo Che Chin [2013] 2 HKLRD 739, §13, following Kershaw v Micklethwaite [2010] EWHC 506 (Ch), at §11.

28. It is not necessary to establish wrongdoing or fault by the personal representative to obtain his removal. If, for whatever reason, (such as clash of personalities, or the lack of confidence in the personal representative by the beneficiaries, even if unjustified) it has become impossible or difficult for the administration to be completed by an existing personal representative, then an order for his removal will usually be made. See Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 21^st ed, §57-20 at page 1113.

29. A personal representative can be removed on the ground of conflict of interest. In Thian Sum v Yung Shui Tong [2019] HKCFI 2867, §17, DHCJ William Wong SC, the administratrix made a claim against the estate. Solely on the ground that she has put herself in a position of conflict, she was removed as an administratrix.”

14.Eileen also relied on Tsang Wing Kwai v. Tsang Wing Fai[2]:

“Ultimately, it is an assessment by the court having regard to all the relevant circumstances of the case if removal is required for the due and proper administration of the estate and the interests of the persons beneficially entitled. Each case must be decided on its own facts and the assessment involves an element of value judgment on the part of the first instance judge.”

15.Jimmy relied on Law Wai Hay v Law Po Chong Priscilla, the administratrix of the estate of Cheung Wai Fun, Deceased[3]:

“(1) The discretion to remove an administratrix under section 33 of the PAO involves an assessment and a value judgement in all the relevant circumstances of whether removal is required for the due and proper administration of the estate and the interests of the beneficiaries.

(2) Not every mistake or neglect of duty, or inaccuracy of conduct of trustees will induce to court to remove the administratrix.

(3) The acts or omissions must be such as to endanger the trust property or to show a want of honesty, or want of proper capacity to execute the duties, or a want of reasonable fidelity.

(4) Hostility between the administratrix and the beneficiary is not a ground for removal, unless the breakdown of the relations between them is such as to lead to the administration coming to a standstill, or makes it difficult or impossible for the administration to be completed by an existing personal representative.”

16.Jimmy also relied on Li Choi Ping & Anor v Xie Yanxian (as administrator of the estate of Li Hon Yuen)[4] for the proposition that a personal representative can be removed on the basis of conflict of interest alone:

“(1) In Thian Sum v Yung Shui Tong [2019] HKCFI 2867, the administratrix made a claim against the estate. DHCJ William Wong SC held that solely on the ground that she has put herself in a position of conflict, she should be removed as an administratrix (§17).

(2) In Tsao Chi Ching v Tsao Lung May, HCCA 2054/2012 (unrep, 22/05/2013), the son contested the application for appointment as personal representative of the estate by the daughter who was an alleged major creditor of the estate. The court held that was a clear case of potential conflict:

‘98. …In due course, the appointed administrator will have to carefully and impartially consider and assess the viability of this alleged debt. Anything less may draw unnecessary conjecture as to the propriety of the administration of the estate.

99. In my view, May’s interest as an alleged major creditor of the Estate might be incompatible with the interests of the Estate in that this alleged debt might create inherent perceived or actual conflict of interest if May were granted administration of the Estate … After all, one of the tasks of the administrator of the Estate would involve scrutinising and, where appropriate, repaying the alleged debt of HK$5,000,000.00 to May. In my view, this is a consideration that militates against May’s suitability in acting as administratrix.’”

17.Ms Ho, counsel for the Mother, in her written submissions concentrated on how the Court would deal with an application for the removal of a personal representative where the friction and hostility between an executor and a beneficiary is hampering the administration of the Estate: Re Estate of Loo Che Chin[5].

“If for whatever reason, such as clash of personalities, or the lack of confidence in the personal representatives by the beneficiaries (even if unjustified), it has become impossible or difficult for the administration of the estate to be completed by an existing personal representative, then an order for his removal will usually be made.”[6]

EVENTS SINCE DEATH OF THE DECEASED

18.Jimmy obtained probate of the Deceased’s estate on 14 May 2008. The power for Eileen to apply for and obtain double probate was expressly reserved.

19.There is no dispute that the current non-disputed assets of the Estate had largely been distributed by July 2012. Currently, the remaining substantive assets in the Estate comprise of:

1)  The EWB Shares;

2)  The Ho Tung Road Property.

20.The Ho Tung Road Property was valued at about HK$11 - 13 million. The value of the EWB Shares was estimated at US$15 million.

21.The ownership of the EWB Shares was hotly contested between the parties. Details of parties’ respective arguments have been set out in paragraphs 12 - 26 of DHCJ Au-Yeung’s Decision. For present purposes, it is sufficient to note that Jimmy contended that the EWB Shares belonged to the Estate whilst Eileen and Mother contended that Mother was at all material times the beneficial owner of the EWB Shares, with the associated cash payment and dividends.

22.Since 2019, various disputes developed between Jimmy and his wife Cynthia on the one hand and Eileen and Mother on the other hand. The following table prepared by Ms Ho, (the accuracy of which were confirmed by other parties) is a summary of the legal proceedings between the parties:

Action number (Date of Writ)		Plaintiff	Defendants	Subject Matter
Hong Kong
2021
1.	HCA 16/2021 (5/1/2021)	Jimmy	D1: Jeffrey D2: Eileen D3: Banner D4: Mother	•  Derivative action commenced by Jimmy on behalf of Banner   •  Claiming that the EWB Shares belong to Banner
2.	HCA 17/2021 (5/1/2021)	Jimmy	D1: Jeffrey D2: Eileen D3: Leebury D4: Mother	•  Derivative action commenced by Jimmy on behalf of Leebury   •  Claiming that Jeffrey, Eileen and Mother misappropriated assets of Leebury
3.	HCMP 598/2021 (“the Beddoe Application”) (29/4/2021)	Jimmy	D1: Eileen D2: Mother	•  Beddoe application taken out by Jimmy for pursuing an intended action on behalf of the Estate   •  Claiming that the EWB Shares belong to the Estate   •  Application adjourned by DHCJ Au-Yeung
2022
4.	HCMP 94/2022 (20/1/2022)	Jimmy	D1: Eileen D2: Mother	•  Application taken out by Jimmy to remove Eileen as executrix of the Estate under the Will
5.	HCA 1031/2022 (15/8/2022)	Jimmy	D1: Mother D2: Eileen D3: Jeffrey D4: Banner	•  Personal action by Jimmy claiming that a loan advanced by Banner to him in the sum of RMB 55 million was in fact a gift
2023
6.	HCA 863/2023 (7/6/2023)	Jimmy	Banner	•  Action by Jimmy on behalf of the Estate   •  Claiming that Banner’s wholly-owned subsidiary Shanghai Jinshun Properties Limited belongs to the Estate
7.	HCA 1449/2023 (11/9/2023)	Jimmy	D1: Banner D2: Eileen D3: Leebury D4: Mother D5: Jeffrey	•  Action by Jimmy on behalf of the Estate   •  Claiming that the EWB Shares belong to the Estate   •  Claiming that Mother’s interest in Fentham belong to the Estate
Singapore
2020
8.	E/20200601/2001 (Criminal complaint to police) (1/6/2020)	Cynthia	Eileen	•  Criminal complaint by Cynthia for Harassment and Voluntarily Causing Hurt   •  Police decided not to prosecute
9.	E/20200603/2001 (Criminal complaint to police) (3/6/2020)	Cynthia	Eileen	•  Criminal complaint by Cynthia, alleging that Eileen had disseminated her private information, assaulted her and instigated domestic helpers to lodge false police reports   •  Police decided not to prosecute
10.	PHA-900486-2020 (9/6/2020)	Cynthia	Eileen	•  Magistrate complaint by Cynthia in respect of alleged offences under the Protection from Harassment Act and Voluntarily Causing Hurt
2021
11.	PS-900011-2021 (15/4/2021)	Cynthia	Eileen	•  Private prosecution by Cynthia alleging theft of her mobile phone by Eileen   •  Attorney General intervened and discontinued
2022
12.	HC/OC 192/2022 (12/8/2022)	Banner	Jimmy	•  Action by Banner against Jimmy for repayment of the RMB 55 Million Loan
13.	HC/OC 56/2022 (24/5/2022)	P1: Mother P2: Eileen	Jimmy	•  Action by Mother and Eileen against Jimmy for unauthorised withdrawals from a joint account belonging to Mother and Eileen

23.Having regard to the list of litigations between the parties, the nature of which include both personal and corporate interests and interests of the Estate, it will be an understatement to say that by now, the relationship between Jimmy on the one hand and Eileen and Mother on the other hand has broken down. The high degree of animosity between the parties is also shown by how these litigations are conducted.

STANCE OF MOTHER AND EILEEN

24.Mr Fung SC and Ms Ho submitted that due to the following reasons, Jimmy ought to be removed as the Executor:

1)  There has been a complete breakdown of relationship between Jimmy and other beneficiaries (Eileen and Mother) such that due and expeditious administration of the Estate has been hampered.

2)  Jimmy is in a position of conflict of interest in respect of the claim relating to the EWB Shares and other claims purportedly for the Estate. There is concern that Jimmy’s decision to commence and pursue litigation in relation to the EWB Shares is driven by his desire to seize a share of the EWB Shares or his personal grudges, such that Mother and Eileen have lost confidence in Jimmy’s administration of the Estate. The position is illustrated below:

Asset	If asset belongs to the Estate	If the asset does not belong to the Estate
EWB Shares	Jimmy will be entitled to 25% of the asset	•  The EWB Shares belong to Mother
Interest in Fentham		•  Fentham belongs to Mother
Banner’s PRC Subsidiary		•  Jimmy is only 12.5% shareholder of Banner
Peirce Road Residence		•  Peirce Road Residence belongs to Eileen

3)  Mother and Eileen, being the majority of the beneficiaries of the Estate (75 % together) both agree that Jimmy should be removed as the Executor.

STANCE OF JIMMY

25.Mr Chan SC, leading counsel for Jimmy, submitted that there was simply no basis for the Court to remove Jimmy:

1)  There was nothing to substantiate Mother’s and Eileen’s allegation that the litigation against them in relation to the EWB Shares was so devoid of merits or without proper basis that Jimmy should be removed for having commenced them.

2)  Hostility between an executor and beneficiaries would only be considered sufficient ground for the removal of an executor if it can be shown that such hostility makes it difficult or impossible to carry out the administration of an estate. In the present case, it was submitted that neither Eileen nor Mother had demonstrated how or why it was impossible or difficult for the administration of the Estate if Jimmy were to remain.

3)  The only substantial work remaining in the administration of the Estate was the litigation in relation to the EWB Shares. Once the litigations are concluded, the ownership of the EWB Shares would be determined. As some of the litigations were commenced by Jimmy, such litigation would in any event continue whether the Estate were to be managed by Jimmy or another independent administrator, the litigation involving EWB Shares would have to be carried on regardless. The status would therefore remain the same whether the Estate continues to be managed by Jimmy or by an independent administrator.

4)  In the present context i.e. for the removal of an executor, the relevant conflict of interest is only the conflict of interest between Jimmy and the Estate, and NOT the conflict of interest between Jimmy and other beneficiaries (emphasis added). It was submitted that as Jimmy’s interest aligned with the interest of the Estate (i.e. to claim beneficial ownership of the EWB Shares for the benefit of the Estate), there was no conflict of interest to speak of. The fact that Jimmy would eventually stand to gain from such actions is irrelevant, if his interest aligned with the interest of the Estate.

5)  The majority view of the beneficiaries should be considered with caution, when their personal self-interests (as opposed to their interests as beneficiaries of the Estate) are involved and such personal self-interests are contrary to that of the Estate.

DISCUSSION

Merits of the EWB litigations

26.Mr Fung SC and Ms Ho submitted that at this stage, it would not be necessary for the Court to come to a view on the reasonableness or the propriety of the intended or existing EWB Shares litigations (whether the ones commenced by Jimmy is his personal capacity or the ones commenced on behalf of the Estate) or the many other disputes between the parties. This is because they relied on the breakdown of the relationship, the difficulty or impossibility of the administration of the Estate and the majority view of the beneficiaries for the removal of Jimmy.

27.Mr Chan SC on the other hand submitted that it is necessary for the court to come to a view on the reasonableness and merits of the intended or existing EWB Shares litigations. Mr Chan SC submitted that unless the court is of the view that what Jimmy did was so unreasonable and was entirely devoid of merits, there would be no ground for his removal.

28.For the following reasons, I am of the view that it would be inappropriate and unnecessary for the court to express any view on the propriety of any existing or intended litigations for the EWB Shares or the many disputes between the parties:

1)  Mr Chan SC’s submission is contrary to the principle as set out in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, 21^st ed, §57-20: “It is not necessary to establish wrongdoing or fault by the personal representative to obtain his removal.”

2)  The merits and propriety of the Intended Action or the existing EWB Shares litigations are not clear-cut nor obvious. The court would need to examine the evidence and opposing arguments put forward by the parties before it could make a determination. It would not be useful (and might indeed be unfair to the parties) for the court to come to “a preliminary view” of the merits just by going through some of the evidence in a summary manner.

3)  Jimmy’s application for a Beddoe Order for the Intended Action has already been adjourned pending the present determination of the application to remove Jimmy. It would be inappropriate for this Court, whilst determining a removal application, to express any view (however preliminary) on the propriety of the Intended Action.

4)  As will be explained below, I am of the view that there is sufficient basis to remove Jimmy on other grounds, without resorting to finding actual fault or wrongdoing alleged against him.

Majority View

29.As there is a possibility that the majority view of Mother and Eileen might be tainted by their self-interests, which might be contrary to the interest of the Estate, I place little weight on the fact that Jimmy’s removal was backed by the majority of the beneficiaries (namely Mother and Eileen).

Conflict of Interest/ Break-down of relations/ Difficulty/Impossibility in the administration of the Estate

30.There is no dispute that Jimmy’s interests are in conflict with Mother and Eileen’s interests. However, Mr Chan SC submitted that in the context of removal of an executor, the only relevant conflict of interest is the conflict of interest between Jimmy and the Estate, and NOT the conflict of interest between Jimmy and other beneficiaries.

31.Despite the persuasive advocacy of Mr Chan SC of this argument, I reject this submission. I am of the view that in the circumstances of the present case, the conflict of interest between Jimmy’s personal interests and the personal interests of Eileen and Mother directly impacts on whether Jimmy can remain impartial when administering the Estate.

32.It is clear that Eileen and Mother have deep mistrusts against Jimmy (and vice versa) from the many disputes between them, including in particular the actions involving the EWB Shares commenced by Jimmy in his personal capacity against Eileen and Mother. It is therefore not surprising that Eileen and Mother would not accept that Jimmy can be objective or impartial when dealing with the Estate. This lack of trust had already resulted in Eileen and Mother challenging many of the decisions taken by Jimmy in relation to the administration of the Estate. The Beddoe Application in relation to the Intended Action is precisely such an example. It is entirely foreseeable that future and further actions of Jimmy for the administration of the Estate would result in similar objections being raised by Mother and Eileen. This would likely lead to further litigations (in addition to the ones already commenced) on the propriety of Jimmy as the executor of the Estate.

33.Mr Chan SC criticised the stance taken by Mother and Eileen as having been driven by their personal interests. However, the same criticism could be laid against Jimmy, as he also stands to gain personally from the Intended Action. The fact that his interests are aligned with the Estate’s potential interests does not necessarily mean that his stance is thus objective. Whether an action or a decision is carried out in the interests of the Estate is not solely measured by how many assets can potentially be included or gathered for the Estate. If the assets in fact do not belong to the Estate, bringing an action to recover such assets (regardless of merits) might eventually result in the Estate having to bear unnecessary costs, and would thus not be in the Estate’s interests.

34.After assessing all the relevant circumstances, I have no hesitation in coming to the conclusion that with the present state of the relationship of the parties, to retain Jimmy as the executor would at least lead to difficulty, if not impossibility in the completion of the administration of the Estate.

35.Jimmy should be removed as the Executor and be replaced by an independent administrator appointed by the Court. Parties agreed that submissions should be made on the propriety of the various candidates put forward at another hearing.

36.By the same logic, insofar as necessary, I will also order that Eileen should also not act as an executrix of the Estate, despite power having been reserved under the grant of probate for her to apply for probate.

COSTS

HCMP 322/2022

37.These are contentious applications between Jimmy on the one hand and Eileen and Mother on the other hand. As Jimmy has failed to resist his removal, he should not be able to look to the Estate to recover his costs.

38.I thus make a costs order nisi that the 1^st defendant (in HCMP 322/2022) do pay the costs of the plaintiff and the 2^nd defendant (in HCMP 322/2022) the costs of HCMP 322/2022 with certificate for two counsel, to be summarily assessed, if not agreed.

HCMP 94/2022

39.As I have also come to the conclusion that Eileen should also not act as an executrix, she should bear the costs of resisting the Originating Summons in HCMP 94/2022. However, Eileen had made clear her stance that she did not resist her own removal if an independent administrator is appointed to replace Jimmy (the “Stance”) latest by the time submissions were lodged. I thus make a costs order nisi that the 1^st defendant (in HCMP 94/2022) do pay the costs of the Plaintiff and the 2^nd defendant up to the point when she had indicated the Stance.

40.The above costs orders nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter) within 14 days hereof. A hearing will be fixed for the argument of such costs order if necessary.

ORDER

41.By reasons of the aforesaid, I order that:

HCMP 322/2022

1)  the 1^st defendant be removed as the executor of the Estate;

2)  A sole administrator be appointed by the court as the administrator of the Estate;

3)  a costs order nisi that the 1^st defendant (in HCMP 322/2022) do pay the costs of the plaintiff and the 2^nd defendant (in HCMP 322/2022) the costs of HCMP 322/2022 with certificate for two counsel, to be summarily assessed, if not agreed.

HCMP 94/2022

1)  the 1^st defendant shall not act as an executrix of the Estate despite the power reserved to her in the grant of probate (Grant No. HCAG 003307/2008) dated 14 May 2008 to apply for and obtain double probate of the will of the Deceased.

2)  A sole administrator be appointed by the court as the administrator of the Estate.

3)  a costs order nisi that the 1^st defendant (in HCMP 94/2022) do pay the costs of the Plaintiff and the 2^nd defendant up to the point when she had indicated her agreement of her removal.

MISCELLANEOUS

42.Parties should, within 14 days hereof, fix a hearing for submissions to be made on the choice of the court-appointed administrator, with 3 hours reserved.

43.It remains for me to thank Mr Chan SC, Mr Fung SC and Ms Ho for their assistance.

In HCMP 94/2022

Mr Edward Chan, SC leading Mr Ken To and Mr Chester Kwan, instructed by Hon & Co, for the plaintiff

Mr Daniel R Fung, SC leading Ms Ebony Ling, instructed by K. B. Chau & Co, for the 1^st defendant

Ms Sabrina Ho and Mr Brian Fan, instructed by P. C. Woo & Co, for the 2^nd defendant

In HCMP 322/2022

Ms Sabrina Ho and Mr Brian Fan, instructed by P. C. Woo & Co, for the plaintiff

Mr Edward Chan, SC leading Mr Ken To and Mr Chester Kwan, instructed by Hon & Co, for the 1^st defendant

Mr Daniel R Fung, SC leading Ms Ebony Ling, instructed by K. B. Chau & Co, for the 2^nd defendant