Wong Lui v. A Xiabuzha and Another

HCAP 18/2021

[2024] HKCFI 495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 18 OF 2021

________________________

________________________

BETWEEN

________________________

________________________

DECISION

________________________

1.This is the hearing of the summons taken out on 28 December 2023 (the “Summons”)  by the plaintiff (“P”).

2.For background of the matter, I refer to my Decision of 19 April 2023[1] (the “Decision”).  I adopt the same terms as used therein.

3.§§2 and 5(i)  to 5(iii)  of the Order (dated 19 April 2023 and filed on 23 May 2023)  sealed as a result of the Decision (the “Sealed Order”)  are in the same terms as the Order I set out in §§45(b) and 45(e)(i)  to 45(e)(iii)  of the Decision.  I repeat them here (adopting the paragraph number in the Sealed Order)  for ease of reference:

“2. The Administrators Pendente Lite be directed and authorized to collect in and protect the Estate of the Deceased;

…

5. The Administrators Pendente Lite are directed to consider and report on the following matters:

(i)  The Deceased’s mental capacity: (i)  after his stroke in January 2019; and (ii)  at the time of signing the Will on 19 August 2019;

(ii)  Whether or not there are reasonably likely causes of action available for the Estate to pursue including consideration of those alleged by the parties;

(iii)  If so, whether or not the Estate ought to pursue such causes of action and to consider obtaining Beddoe directions from the Court as may be appropriate, including but not limited to how such action ought to be pursued and by whom”.

4.On 23 June 2023, P filed a notice to act in person.  The present Summons was taken out by her while acting as such.

5.§§1 to 3 of the Summons read as follows:

“1. An enhancement on para 2 of the Order specifying the Administrators Pendente Lite be directed to collect in the Estate of the Deceased from the period of his acute stroke in Jan 2019 to the present.

2. [P] herein be granted Court Endorsements for requesting prosecution on criminal behaviour of D1 and/or others, which included but not limited to kidnapping, financing abuse, and misleading investigations; these are the direction for reasonably [sic.] causes of action on para 5(ii)  & (iii)  of the Order.

3.  Further and/or other consequential orders as this Honourable Court may deem fit.”

6.P on 28 December 2023 filed her 4^th affirmation in support of the Summons.  I have considered its contents. 

7.In respect of §1 of the Summons:

(a)  I have considered P’s 4^th affirmation.  I have considered her written submissions.  In addition, I have also considered P’s oral submissions made during the hearing.  She said that she had already submitted all information to the Administrators Pendente Lite, but had not heard further from them.  She referred to the medical reports received in September 2022 in relation to the Deceased.  She said that her previous legal advisers had not dealt with the evidence.  She said that the matters had been along the wrong direction without getting the MIP status of the Deceased confirmed;

(b)  In my view, and with respect, those matters hardly bear on her application;

(c)  What the Administrators Pendente Lite have been directed and authorized to do have in my view been clearly set out in §2 of the Sealed Order read in conjunction with §§5(i) to 5(iii)  of the same;

(d)  I see no justification in ordering any “enhancement”, whatever that is intended to mean.

8.In respect of §2 of the Summons:

(a)  Again, I have considered the materials before me.  I have also considered P’s oral submissions.  She said that the matters are really “in criminal level”, so that she submitted her application;

(b)  In my view, and again with respect, those matters hardly bear on her application;

(c)  Whether P wants to report to any law enforcement agency any matter which she believes amounts to criminal activities is a matter for her;

(d)  Should P decide to make any report to for example the police, how the police intend to process and investigate the report are matters for the police;

(e)  In deciding whether to report, P may seek independent legal advice.  In deciding how to process and investigate any report from P, the police may seek legal advice from the Department of Justice.  It is not the role of this Court to render any such legal advice.  It would have been wrong for this Court to do so;

(f)  There is no legal basis for P to seek any “Court Endorsements for requesting prosecution” from this Court, and I see no basis for or justification in giving any.

9.I see no consequential order required.

10.I dismiss the Summons.

11.In my view, the Summons has no merits.  I order that P shall bear the costs of the Summons personally, to be assessed summarily.  I have considered the Statement of Costs submitted on Ds’ behalf.  I am of the view that Items C and D are too high.  For the legal advisers to incur costs in the region of HK$44,000 on an application of the present nature is not reasonable.  Counsel’s brief of HK$10,000 is reasonable.  On a broad-brush basis, I summarily assess Ds’ costs of and occasioned by the Summons at HK$20,000, which P has to bear personally (not from the Estate).

The Plaintiff appeared in person

Ms Flora Lam, instructed by Cheng & Co, for the 1^st and 2^nd Defendants