Tian Hongmei v. Zhang Wei and Others

HCAP 29/2022 [2024] HKCFI 303 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO. 29 OF 2022 ________________________   IN THE ESTATE of CHA MOU SING PAYSON (查懋聲)  late of 103 Headlane Drive, Discovery Bay, Lantau, Hong Kong, married, deceased   and   IN THE MATTER of Order 76 of the Rules of the High Court (Cap.4A) ________________________

BETWEEN

	TIAN HONGMEI (田紅梅)	Plaintiff
	and
	ZHANG WEI (張煒)	1st Defendant
	CHAN YUEN PING CARMEN (陳婉冰)	2nd Defendant
	WONG CHA MAY LUNG (also known as WONG CHA MAY LUNG MADELINE) (王查美龍)	3rd Defendant
	CHA YUIN LING NATALIE (查詠琳)	4th Defendant

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Before:

Deputy High Court Judge H. Au-Yeung (Paper Disposal)

Dates of Submissions:	24 November & 15 December 2023 and 5 January 2024
Date of Decision:	29 January 2024

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DECISION

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INTRODUCTION

1.By a Decision handed down on 18 October 2023 (“the Decision”), this Court dismissed the plaintiff’s application for summary judgment with costs.  By Summons filed on 1 November 2023 (“the Leave to Appeal Summons”), the plaintiff applied for leave to appeal.

THE APPLICABLE LEGAL PRINCIPLES ON LEAVE TO APPEAL

2.The requirement for granting leave to appeal is set out in section 14AA(4)  of the High Court Ordinance (Cap 4, Laws of Hong Kong).  It is trite that leave to appeal shall not be granted unless the court is satisfied that the intended appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard. 

3.It is also well established that a reasonable prospect of success means an appeal with prospects that are more than fanciful without having to be probable (SMSE v KL [2009] 4 HKLRD 129 at [17]).

THE DRAFT GROUNDS OF APPEAL

4.The draft grounds of appeal are as follows:

(1)  This Court erred in law (i)  in concluding that the Court cannot in this action pronounce against the validity of the Purported Will but must make a grant of probate of a will or letters of administration in respect of the Deceased’s estate; and (ii)  in dismissing the Summary Judgment Summons on the ground that the plaintiff was “adopting a piece-meal approach”.  This is particularly so in a case where (as here)  there is an extant and hopeless claim that a purported will should be admitted to probate.  The Court must have power to pronounce against such an alleged will with or without a trial even if, before it can be decided what grant should be made, there are other issues which may require determination in the same action or in a further action. (“Ground 1”)

(2)  This Court further erred in failing to find that the Purported Will is plainly invalid, that the defendants have not raised any triable issue in respect of the plaintiff’s claims, and that therefore summary judgment should be entered in favour of the plaintiff. (“Ground 2”)

DISCUSSION

Ground 1

5.In dismissing the plaintiff’s application for summary judgment, this Court relied heavily on the well established legal principles which were set out in Li Cheong v Lee Kwai Tai [2018] 4 HKLRD 120, [2018] HKCA 491 at [47] and Choy Po Chun & Another v Au Wing Lun [2012] 2 HKLRD 148 at [16].

6.In support of the present leave to appeal application, it is argued on behalf of the plaintiff that neither Li Cheong nor Choy Po Chun was concerned with the present situation, that is, a plaintiff claiming for a pronouncement against the validity of a plainly invalid purported will without seeking a grant of representation. 

7.With greatest respect, the plaintiff’s arguments are totally misconceived.  They are completely contradictory to the trite principle that a probate action is by nature in rem.  Although the facts in Li Cheong and Choy Po Chun are different from those in the present case, I cannot see why that would affect the applicability of the said trite general principle herein, even if, as alleged by the plaintiff, the Purported Will is unarguably invalid.

8.The plaintiff submitted that ultimately the question of law is: “is there a rule of law prohibiting summary judgment against a hopeless will simply because the Court cannot at the same time make a grant?”. In my view, there plainly is such a rule, which is trite.  I also take the view that that is the reason why the application made by the plaintiff was unprecedented.  Hence, the question raised is not one that needs to be considered by the Court of Appeal.

9.Furthermore, it is not understood the basis of the plaintiff’s allegation that this Court has not articulated why as a matter of principle the plaintiff’s truncated approach here is objectionable, as the reasons have clearly been explained in the Decision – see [46] to [53] thereof.

10.The plaintiff’s reliance on the underlying objectives of the Rules of the High Court in support of her argument that the Court should pronounce against the plainly invalid will is also misplaced.  I agree with senior counsel acting for the 3^rd defendant that such objectives do not detract from the general principles explained in Li Cheong and Choy Po Chun.

11.For the above reasons, I hold that the plaintiff has no reasonable prospect of success on Ground 1.

Ground 2

12.Given the conclusion reached in relation to Ground 1, Ground 2 is a non-starter, because the Court should deal with all the issues once and for all, rather than in a truncated manner as proposed by the plaintiff.  There is thus no basis for the plaintiff to ask the Court to consider the merits of her case against the 3^rd defendant at this stage.

13.Ground 2 is therefore bound to fail in the circumstances of the present case.

DISPOSITION

14.By reasons of the aforesaid, the Leave to Appeal Summons is dismissed. 

COSTS

15.I make a costs order nisi that the plaintiff shall bear the costs of the Leave to Appeal Summons of the 3^rd defendant (including all costs reserved)  to be assessed on party and party basis, with certificate for two counsel. 

16.The 3^rd defendant asked for indemnity costs.  On a preliminary basis, I take the view that there is no special feature in this application which justifies an indemnity costs order. 

17.The above order nisi shall become absolute in the absence of application to vary (which, if any, shall be made by letter, and will be disposed of on paper)  within 14 days hereof.

18.The 3^rd defendant’s costs of the Leave to Appeal Summons shall be summarily assessed in lieu of taxation. 

19.Unless any application for variation of the aforesaid costs order nisi is made within time, the 3^rd defendant shall lodge and serve her statement of costs within 7 days after the expiry of the said 14-day period.  The plaintiff shall lodge and serve her statement of objection within 7 days thereafter.  Summary assessment will be conducted on paper (no matter whether any statement of objection is lodged within time)  thereafter.  The costs assessed shall be paid by the plaintiff within 14 days after assessment.

	( H. Au-Yeung )
	Deputy High Court Judge

Mr Bernard Man SC leading Mr Thomas Wong, instructed by Deacons, for the plaintiff

Mr Ambrose Ho SC and Mr Law Man Chung SC, instructed by King & Wood Mallesons, for the 3^rd defendant