Kwok Yuk Kieng and Others v. Man Chuk Hei

HCAP 24/2023

[2025] HKCFI 452

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 24 OF 2023

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J U D G M E N T

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1.This is a probate action tried on affidavit evidence. The Plaintiffs (“P1”, “P2” and “P3” respectively, “Ps” collectively) are represented by Mr Lawrence Cheung in this trial.

2.On 9 April 2024, Ps obtained leave from Master Hui to serve the Writ of Summons (with a Statement of Claim (“SOC”) annexed thereto) on the Defendant (“D”) by substituted service. Having perused the evidence concerning service adduced by Ps, I am satisfied that Ps have duly served the Writ of Summons on D. D has not returned the Acknowledgement of Service to the Registry of this Court and has not appeared at any stage of these proceedings

3.On 3 October 2024, DHCJ KC Chan ordered that this case be tried on affidavit evidence, and P1 or P3 do attend the trial.

4.Ps’ case as pleaded in the SOC is as follows:

(1)  Mr Kwok Hon Yee (郭漢儀) (“the Deceased”) was at all material times a Hong Kong permanent resident who had been residing in the Netherlands since 1972.

(2)  The Deceased passed away on 20 January 2018 in the Netherlands without leaving a Will.

(3)  The Deceased was survived by his 4 lawful and natural children, namely Ps and Madam Kwok Yuk Chee (郭玉芝) (“YC Kwok”).

(4)  D is the natural mother of Ps and YC Kwok. D was married to the Deceased in Hong Kong on 27 September 1972. The marriage lasted until 5 October 1998 when the Deceased and D obtained a divorce in the Netherlands.

(5)  The Deceased, before his demise, owned, inter alia, a piece or parcel of land registered in the Land Registry as Lot No.713 in Demarcation District No.112 Together with a residential building erected thereon and commonly known as No.6E, Ngau Keng Tsuen, Lin Fa Tei, Pat Heung, Yuen Long, New Territories.

(6)  In or about December 2020, Ps discovered that D had applied and obtained Letters of Administration of the Deceased’s estate in Hong Kong on 18 July 2019 being Grant No. HCAG 008951/2019 (“the Grant”), without Ps’ knowledge.

(7)  D, having divorced from the Deceased on 5 October 1998, is neither the lawful widow nor a person having a beneficial interest in the Deceased’s estate. D is therefore not a party entitled to the Grant.

(8)  On the other hand, Ps and YC Kwok are the beneficiaries of the Deceased’s estate and are persons having the highest priority to obtain a grant.

5.Ps are seeking an order to set aside or to revoke the Grant[1], and an injunction prohibiting D to sell, dispose of, mortgage, assign, deal with or otherwise diminish the value of the Property.

6.Ps have filed the Affirmation jointly made by P1 and P3 on 29 July 2024 (“the Joint Affirmation”), and the Affirmation made by P2 on 7 August 2024 to support Ps’ case. P1 has attended the trial and has confirmed the contents of the Joint Affirmation under oath in the trial. In P2’s Affirmation, P2 has also confirmed the matters deposed in the Joint Affirmation. Having considered the affirmations filed by Ps and the exhibits produced in the affirmations, I am satisfied that Ps’ case as pleaded in the SOC is proved.

7.At the time of the death of the Deceased, D was no longer the wife of the Deceased. It is trite that for the purposes of the Intestates’ Estates Ordinance (“IEO”), the status of husband or wife must be enjoyed at the date of the death of the other spouse, so that marriages which have been annulled or dissolved during the lifetime are not included.[2] Plainly, D would not be a beneficiary of the Deceased’s estate under the IEO. The beneficiaries of the Deceased’s estate shall be Ps and YC Kwok.[3] That being the case, D should not be entitled to have a grant to administer the Deceased’s estate. The persons entitled to have the grant should be Ps and YC Kwok.[4] I make an order to revoke the Grant.

8.Costs should follow event. Costs of these proceedings be paid by D to Ps, and those costs be summarily assessed at HK$150,000.

9.Lastly, it remains for me to thank counsel for the assistance rendered to the Court.

Mr Lawrence Cheung, instructed by WL Yuen & Co., for the 1^st to 3^nd Plaintiffs

The Defendant was not represented and did not appear