Liu Kaibang, A Minor, By His Next Friend and Mother Liu Lijuan v. Lai Joseph Tak

HCAP 44/2023

[2025] HKCFI 2352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 44 OF 2023

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BETWEEN

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D E C I S I O N

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1.This is the Defendant (“D”)’s appeal against the Order of Master KH Hui (“the Master”) dated 6 December 2024, by which the Master dismissed D’s summons for security for costs issued on 30 July 2024. It is trite that an appeal from a master’s decision to a judge in chambers is a de novo hearing. Subject to the restriction in Order 58 rule 1(5), the hearing before me is an actual rehearing as if the application came before me for the first time.[1] Accordingly, I would deal with D’s appeal by considering D’s application for security for costs (“D’s Security Application”) afresh, as if the same came before me for the first time.

2.In the hearing before me, the Plaintiff (“P”) is represented by Ms Frances Lok SC, leading Mr Kwan Ping Kan. D is represented by Ms Audrey Eu SC, leading Ms Carol Wong.

Background

3.P is a minor, born on 17 January 2014. He is suing by his next friend and mother, Madam Liu Lijuan (“Madam Liu”).

4.This case concerns the validity of the will made by the late Mr Dennis Lai (黎德望, “the Deceased”) on 20 December 2016 (“the Will”). The Deceased had two brothers, namely D and the late Mr Andrew Lai (黎德光, “Andrew”). Under the Will, D and Andrew were appointed as the executors and the trustees of the Deceased’s estate. Clause 5 of the Will is as follows:

“My trustee shall distribute the Residuary Estate in the following manner:-

(a) The Trustee shall make provision from the Residuary Estate for any dependent(s) as they see fit, appropriate, necessary and sufficient; and

(b) The Trustee shall also make donations from time to time from the Residuary Estate to such charitable bodies as they may see fit and in their absolute discretion until extinction of the Residuary Estate.”

5.The Deceased passed away on 3 September 2018. Probate was granted to Andrew and D on 4 February 2019 as joint executors (“the Grant”). Andrew passed away on 25 May 2020. Thereafter, D is the sole executor and the sole trustee of the Deceased’s estate.

6.P’s case is that although Madam Liu did not formally marry the Deceased, P is a natural biological son of the Deceased, and the only issue of the Deceased. Being the only issue of the Deceased, P challenges the validity of the Will, which was purportedly made by the Deceased on 20 December 2016.

7.In the Statement of Claim (verified by a Statement of Truth signed by Madam Liu) annexed to the Writ of Summons issued on 13 December 2023, P pleaded:

“6. In about 2012, the Deceased was diagnosed with lung cancer, for which he had to regularly leave home for a period of time to receive treatments (including chemotherapy) in hospitals. The Deceased responded well to treatment initially, but suffered from a relapse in about late 2015 / early 2016, such that he required more frequent treatments.

7. On 27 May 2016, the Deceased arranged for a forensic paternity test to be conducted on himself and the Son in a laboratory in Zhuhai, pursuant to which a report entitled “珠海婦幼法醫物證 [2016] 物證簽字第269號” ("Paternity Report") was issued. The Paternity Report commissioned by the Deceased proved that he was the biological father of the Son. The Paternity Report is notarized in Zhuhai (珠海市橫琴公證處).

8. In mid-2016, given the Deceased's advanced age (64 years old), his illness and relapse, and the tender age of his only Son (who was only 2 years old), the Deceased explained to Madam Liu his decision regarding his estate planning, in particular, his decision as to how to provide for Madam Liu and their Son after he passed away ("2016 Representation"):

(1) The Deceased told Madam Liu that he had decided to leave her and their Son all the assets (including cash and stock funds) in his accounts in ICBC China upon his death. Those assets were of the value of about RMB 100 million which would be sufficient to provide for Madam Liu and the Son, who were his dependents, for the years to come after he passed away;

(2) The Deceased gave the original Paternity Report to Madam Liu to keep, and repeatedly reminded her to keep it safe, as the Report would be able to prove that he was the biological father of their Son.”

8.P complains that the Will is irrational. Under the Will, the Deceased’s two brothers had been given a complete discretion as to how to deal with the sizeable residuary estate under the Will. P says that this is in contradiction with the 2016 Representations. P claims for, inter alia, the Grant be revoked, a decree propounding against the validity of the Will, and an order that the letters of administration of the Deceased’s estate be granted to Madam Liu. P further claims that alternatively, if the Will is valid, given the presence of minor interest in the Deceased’s estate, and given the old age of D (D is now aged 77), D should be replaced by two new executors appointed by the Court, one being Madam Liu and the other being a trust corporation.

9.In the Defence and Counterclaim filed on 13 May 2024, D disputes the locus of P. In other words, D does not admit that P is a natural biological son of the Deceased (“the Paternity Issue”). On the Paternity Issue, D’s case as pleaded in §3 of the Defence and Counterclaim is as follows:

“Non-admission of the identity of Madam Liu

(a) To the best of [D]’s knowledge, prior to his death, the Deceased had been in a relationship with a woman named “小敏” (transliterated as “Siu Man”) from Mainland China. However, they did not marry each other. The Deceased died single.

(b) [D] has no knowledge as to the real or full name of Siu Man. The Deceased never referred to Siu Man by the name of “Liu Lijuan” (ie Madam Liu's name).

(c) On various occasions when Siu Man requested [D] to transfer money to her, Siu Man designated the account of Madam Liu as the recipient account and when asked by [D], Siu Man represented to [D] that Madam Liu was to receive the money on her behalf.

(d) By letter dated 2 November 2022 from Yip, Tse & Tang (“YTT”), solicitors for [D], to KB Chau & Co. (“KBC”), solicitors for [P], it was enquired whether Madam Liu had names or alias other than the name "Liu Lijuan". In reply, by letter dated 3 November 2022 from KBC to YTT, it was confirmed that Madam Liu had no such other names or alias.

(e) Accordingly, it is not admitted that Siu Man and Madam Liu are the same person. Nor is it admitted that Madam Liu was in any way related to the Deceased.

Non-admission of the Deceased’s paternity of the Son and/or Kai Kai

(f) In or around September 2015, the Deceased told [D] that he might have a son of 2 years old (hence was born in or around 2013) named “開開” (transliterated as "Kai Kai") out of his relationship with Siu Man. However, since he only visited Siu Man in Zhuhai, China on scarce occasions and had been advised by his doctor that it was difficult for him to impregnate a woman because of his health condition, the Deceased doubted whether Kai Kai was his child. For reasons pleaded hereinbelow, the Deceased had always been doubtful of his paternity of Kai Kai.

(g) In or around May 2016, the Deceased informed [D] and the Deceased’s lawyer Lam Kin Hung Patrick (“Patrick”), solicitor of YTT, that he intended to apply for Kai Kai to come to Hong Kong from Mainland China. He asked for assistance from [D] and Patrick in handling such application.

(h) On 10 June 2016, Patrick was provided with a copy of the Paternity Report by Cindy Lai[2], the Deceased’s former sister-in-law, for the purpose of supporting the application for Kai Kai to come to Hong Kong.

(i) In or around June 2016, the Deceased informed [D] that he found out that Siu Man had a subsisting marriage at the time of Kai Kai's birth. He expressly told [D] and Patrick not to believe in the accuracy of the Paternity Report. He then asked [D] and Patrick to withhold and subsequently abandon all procedures for applying for Kai Kai to come to Hong Kong. Kai Kai did not come to Hong Kong eventually.

(j) In the Medical Certificate of Birth of Kai Kai produced by [P], the name of the father is omitted;

(k) Accordingly, it is not admitted that the Deceased was the natural father of Kai Kai. It is further not admitted that Kai Kai and the Son are the same person. Hence, it is not admitted that the Son is in any way related to the Deceased.

Absence of locus standi

(l) Since (i) the Will is the last will of the Deceased and [P] is not a beneficiary named in it, (ii) Siu Man and/or Madam Liu was not married to the Deceased and (iii) the paternity of Kai Kai and/or the Son is in dispute, [P] has no locus standi to pursue this action unless and until the paternity of Kai Kai and/or the Son is determined.”

10.D further says that the Will is valid. D denies P’s claim and put forward a counterclaim. In D’s counterclaim, D seeks directions that the scientific tests be used to show whether or not the Deceased is or is not the father of P, a declaration as to the paternity status of the Deceased vis-à-vis P, a decree propounding for the validity of the Will, and a grant of probate of the Will in solemn form.

11.In the Reply and Defence to Counterclaim filed on 9 July 2024, P pleaded that:

“3. …… [P] avers that, to [D]’s actual knowledge:

(1) Whilst Madam Liu had no legal name or alias other than her real name “Liu Lijuan” (刘丽娟), the nickname of Madam Liu used by her friends and family has been “小敏”

(2) The Deceased addressed Madam Liu as “小敏”.

(3) [D] addressed Madam Liu as “小敏” or “小敏媽媽” (when in front of the Son).

(4) Madam Liu had been in a long term relationship with the Deceased (despite that they did not register to be married) for more than a decade until the Deceased’s death.

(5) The Deceased and Madam Liu gave birth to the Son, nickname “開開”.

(6) [D] (being the Son's paternal uncle) visited Madam Liu and the Son from time to time.

(7) [D] himself addressed the Son as “開開”.

(8) The Son addressed [D] as “大伯” (big uncle).”

12.Thereafter, on 11 July 2024, D’s solicitors wrote to P’s solicitors to request P to provide security for D’s costs up to the conclusion of these proceedings in the sum of HK$4,248,107. A skeleton bill of costs was enclosed in that letter.

13.On 30 July 2024, D took out the summons for security for costs.

14.On 19 August 2024, P took out a summons (“P’s Paternity Summons”) seeking directions on the Paternity Issue.

15.There is a litigation between D and ICBC Bank in Mainland. An issue in the case is whether, D, being the sole executor of the Deceased’s estate, had the authority to deal with the money in the Deceased’s bank account with ICBC. P is a third party in this case. On 21 November 2024, the Zhuhai Intermediate People’s Court (“ZHIC”) handed down a judgment (“the ZHIC Judgment”), in which the ZHIC ruled against D. In that judgment, the ZHIC accepted the Paternity Report (pleaded in §7 of the Statement of Claim) as evidence and attached weight to that report, and held that P is the natural biological son of the Deceased.

16.On 6 December 2024, D’s Security Application was dismissed by the Master.

17.On 19 December 2024, D lodged this appeal.

18.On 23 December 2024, D lodged an appeal (“D’s Mainland Appeal”) against the ZHIC Judgement to the Guangzhou High People’s Court (“GZHC”).

19.On 25 February 2025, on P’s Paternity Summons, Winnie Tsui J made a decision, ordered that the Paternity Issue be resolved as a preliminary issue in these proceedings, and gave directions for the conduct of the preliminary issue. See [2025] HKCFI 1251. The terms of the Order (“the Paternity Directions”) made by the learned judge is annexed to that decision.

The parties’ respective submissions

20.There is no dispute that P is residing in Zhuhai and is ordinarily resident out of Hong Kong.

21.Both Ms Eu SC and Ms Lok SC refer me to the Court of Final Appeal’s decision in Nina Kung v Wang Din Shin (No 2) (2006) 9 HKCFAR 800, in which Ribeiro PJ said:

“12. Accordingly, the general rule where opposition to a will is unsuccessful is that costs follow the event. However, if the case can be shown to fall into one or other of the two exceptions, the order is, in the first category (where the litigation is caused by the conduct of the testator or the residual beneficiary) for the costs to come out of the estate; and in the second category (where circumstances lead reasonably to an investigation of the will’s validity) for there to be no order as to costs. I shall refer to these two categories as “the first exception” and “the second exception” respectively.

……

15. It is, however, important to note that the manner in which the challenge to a will is mounted may determine the court’s approach to costs. A case may fall prima facie within one of the two exceptions, but if opposition to the will goes beyond putting the proponent to strict proof of its validity and takes the form of hostile litigation, the general rule whereby costs follow the event is likely to be applicable. ……

17. It follows that in exercising its discretion, the court draws a distinction between litigation reasonably undertaken by a person in order to require the validity of a will to be investigated by the court, and litigation which is fundamentally hostile, where the opposing party takes it upon himself to establish a positive case such as of forgery, fraud or undue influence, with a view to defeating the will and advancing his own claim to the estate over that of the will’s proponent. It is of course perfectly open to the will’s opponent to adopt such an approach. However, he runs the risk of an adverse costs order if he is unsuccessful.”

22.A contentious issue in D’s Security Application is whether this case is within one of the two exceptions in the Nina Kung case.

23.Ms Eu SC for D submits that:

(1) P is ordinarily resident in Zhuhai. There is no evidence showing that he has any valuable asset in Hong Kong. In the circumstances, he is liable to provide security for D’s costs in this case.

(2) P does not have a meritorious case. D has provided cogent evidence to prove the validity of the Will.

(3) As to the two exceptions in Nina Kung, (a) the first exception would not apply, as there is no allegation that the conduct of the Deceased or the residuary beneficiary caused the litigation; and (b) the second exception also does not apply, for there is no circumstance which leads reasonably to an investigation of the Will’s validity. P’s approach in contesting the Will’s validity can be regarded as hostile litigation, and the effect of P’s claim is an attempt to yield substantial financial benefits for P. The action is brought for P’s own benefit and instead of the benefits of the estate. In these circumstances, costs should follow the event.

(4) The existence of D’s counterclaim would not prevent the grant of the security sought by D. In the counterclaim, D is seeking reliefs concerning (a) the Paternity Issue; and (b) a decree to propounding for the validity of the Will and a grant of probate of the Will in solemn form. The reliefs sought concerning the Paternity Issue in the counterclaim overlap with the directions sought in P’s Paternity Summons, and have been taken care of by the Paternity Directions. The other reliefs sought in the counterclaim would not be necessary if P’s claim is dismissed by reason of his failure to pay the security ordered by the Court. In that scenario, D would simply withdraw the counterclaim.

24.Ms Lok SC for P submits that:

(1) The Will contains suspicious and inexplicable features which warrant the Court to investigate into its validity. The exceptions in the Nina Kung case should apply. Given the specific context in this probate case, ordering security is unjust.

(2) The quantum sought by D is plainly excessive.

(3) D’s conduct is unreasonable. D has inflicted financial pain on P by cutting off all his financial provisions (despite P being a dependent of the Deceased and only of tender age) and forces P to confront multiple interlocutory applications which escalated costs and caused delay. The result of P not succumbing to D’s demand for security would be the stifling of the investigation into the validity of the Will.

25.Ms Eu SC submits that:

(1) There is no suspicious or inexplicable features in the Will.

(2) Litigation costs are increased because P’s unreasonable conduct in these proceedings.

(3) P’s stifling argument does not get off the ground. P has not adduced evidence to show that an order requiring him to provide security for costs would stifle his claim. Further, the Deceased had provided substantial assets to Siu Man during the Deceased’s lifetime. Also, D also transferred substantial sums to Siu Man after the death of the Deceased. The relevant evidence is in D’s 3^rd Affirmation filed on 21 November 2024, in which D said:

“9. In or about May 2016, the Deceased and I discussed the following matters:-

(1) I asked the Deceased if he wished to include KK as his beneficiary in his will. The Deceased indicated that there was no such need as he had purchased two luxury properties in Zhuhai in SM's name, ……, for use as the residence of SM and KK, and another for rental income to support their living. Further, the Deceased had provided sufficient cash in the amount of more than RMB 20 million to SM for her, her family and KK's future expenses, which the Deceased said would be sufficient to bring up KK decently up to his finishing up his university studies without the need of other financial assistance.

……

24. Indeed, if the 2016 Representation does in fact exist, I wonder why neither Madam Liu nor [P] has ever made any probate application in the Mainland China to get all the Deceased's assets in his accounts in ICBC China years upon his demise, but instead had to constantly appeal to me for monies using various excuses. SM has, since April 2019, made various requests for me to transfer money to her and up till 17 October 2022, I have at SM's request transferred an aggregate sum of RMB9,475,000 to her. For the avoidance of doubt, the person asking me for money has always been, insofar as I am aware of, SM, who had on various occasions designated the account of Madam Liu as the recipient account and when asked, SM represented to me that Madam Liu was to receive the money on her behalf. I note in the Reply and Defence to Counterclaim filed on 9 July 2024 that Madam Liu said she is SM. ……”

Discussion

26.With no disrespect to counsel, I am not prepared to address each and every point raised by counsel in their respective submissions. I would state some matters in the paragraphs below, which are in my view important for the purpose of determining D’s Security Application. I have invited counsel to make submissions on these matters in the hearing.

27.As a result of the Paternity Directions, these proceedings are now divided into two parts:

(1) Part I – trial of the preliminary issue, ie the Paternity Issue

(2) Part II – trial of the other issues, namely, (a) the validity of the Will, and (b) in the event that the Will is valid, removal of D as the executor of the Deceased’s estate, and appointing new executors of the estate.

28.In my view, it would not be right to require P to provide security for D’s costs up to the conclusion of these proceedings.

(1) For Part I, no security for costs should be ordered, for P has demonstrated a high degree of probability of success on the Paternity Issue.

(2) For Part II, whether D is entitled to have security for costs would depend upon the circumstances after the determination of Part I. Before knowing the outcome of Part I, D is not entitled to seek security for costs for Part II.

29.If security for costs is refused on the ground that there is strong merits in the plaintiff’s case, the plaintiff must have demonstrated that he has a high degree of probability of success at the trial, and the Court should approach the matter in a broad-brush manner. The relevant principles have been set out by B Chu J in Hannelore de Lasala-Debring v Ernest Ferdinand Perez de La Sala (HCMP 1029/2013, 8 July 2015), in which the learned judge said (footnotes omitted):

“8. Although the merits of a plaintiff’s claim may be a relevant consideration in deciding whether security should be ordered, this is to be approached in a broad-brush manner. It is not the function of the court to make a preliminary run at deciding the ultimate success or failure of the claim and parties shall not attempt to go into the merits of the case unless it can be clearly demonstrated that the plaintiff has a high degree of probability of success.

9. In Lim Yi Shen v. Wong Yuen Yee [2012] 3 HKLRD 505, Recorder Horace Wong SC has cautioned against forming any view on the merits simply on paper, especially if the facts are likely to be sensitive to oral evidence, and he held that the threshold of demonstrating probability of success in the context of a security for costs application is “very high”, and that the practice of going into the merits of the case in such application is “to be deplored” unless the merits are clear.

10. Similarly, although the Court will also consider whether the defendant has an arguable defence, this should also be approached in a broad-brush manner rather than embarking on an assessment exercise as though it were considering an application for summary judgment.” (Emphasis in original)

30.Part I is the trial of the Paternity Issue. Based upon the evidence now before me, adopting a broad-brush approach, I am of the view that P has a high degree of probability of success in this trial.

(1) The Paternity Report

(a) The Paternity Report mentioned in the parties’ respective pleadings is evidence in support of P’s case on the Paternity Issue.

(b) In §3(i) of the Defence and Counterclaim, D pleaded that in or around 2016, the Deceased told him that Siu Man had a subsisting marriage at the time of Kai Kai’s birth, and D should not believe in the accuracy of the Paternity Report.

(c) The Paternity Report is a 司法鉴定意见书 issued by 珠海市妇幼保健院法医物证司法鉴定所 on 20 May 2016. According to that report, upon the request of the Deceased, DNA test was concluded by using the relevant blood samples to find out whether the Deceased is the natural biological father of P. The conclusion of the report is that the answer to the question is affirmative. A photo showing the Deceased happily holding P in his arms is attached to the report. It is not known on what basis the reliability or the accuracy of the report can be challenged.

(2) ZHIC Judgment

(a) In the ZHIC Judgment, the ZHIC said:

“三、关于黎德信是否有权要求工行珠海分行向其支付款项。根据黎德望的遗嘱，黎德信、黎德光为遗嘱的共同执行人。香港高等法院也将黎德望遗产的管理权共同授予了黎德信、黎德光。因此，黎德望的遗产应由黎德信、黎德光二人共同管理，不可由其中一人单独管理。虽然遗嘱规定，若黎德信、黎德光任何一位先于黎德望离世或未能比黎德望生存多于三十天，则在生一位便成为遗嘱唯一执行人。但黎德望于2018 年去世，黎德光于2020 年去世，黎德光的生存时间远超黎德望30天，故黎德信并不符合成为遗嘱唯一执行人的条件。《中华人民共和国民法典》第一千一百四十五条规定：

‘继承开始后，遗嘱执行人为遗产管理人；没有遗嘱执行人的，继承人应当及时推选遗产管理人；继承人未推选的，由继承人共同担任遗产管理人；没有继承人或者继承人均放弃继承的，由被继承人生前住所地的民政部门或者村民委员会担任遗产管理人。’

珠海市妇幼保健院法医物证司法鉴定所出具的亲子鉴定显示刘开邦为黎德望的儿子，黎德望存在继承人。在黎德信不具备遗产管理人资格的情况下，继承人需要重新推选遗产管理人或者由继承人担任遗产管理人。虽然黎德信在本案中请求确认其为遗产管理人，但指定遗产管理人属于适用民事诉讼特别程序审理的事项，不宜在本案中进行审处。因黎德信目前并不享有遗产管理权，工行珠海分行拒绝向其支付黎德望遗留的款项，具有事实和法律依据。

综上所述，黎德信的诉讼请求不能成立，本院不予支持。……” (underline added)

(b) In refusing D’s claim, ZHIC accepted the Paternity Report and made a ruling that P is the natural biological son of the Deceased.

(3) Even on D’s case, D admitted that the Deceased had a relationship with a woman called “Siu Man” in Mainland, and that woman had given birth to a boy called “Kai Kai”. D doubted whether Siu Man is Madam Liu, and whether that boy is P. However, up to now, only Madam Liu has come forward and claims that she is Siu Man. Further, according to D, all the RMB9,475,000 transferred by him went to Madam Liu’s account. In the circumstances, there is a high degree of probability that in the trial in Part I, the Court would find that “Siu Man” in fact is Madam Liu. Further, it would be natural that “Kai Kai” is the nickname of P, whose name is “Liu Kaibang”.

(4) There is no evidence from D showing that P is not the natural biological son of the Deceased. At best, D could only say that at one time, the Deceased doubted whether Kai Kai was his son (see §3(i) of the Defence and Counterclaim). However, there is actually no evidence from D in support of a case that P is not the natural biological son of the Deceased.

(5) In view of all the above, I am of the view that P has a high degree of probability of success in the trial in Part I.

31.I am fully aware of the following:

(1) A DNA Report (“the DNA Report”) will be prepared in accordance with the Paternity Directions.

(2) D’s Mainland Appeal will be determined by the GZHC.

(3) If the DNA Report gives a definite negative answer on the Paternity Issue, and/or the GZHC gives some negative comments on the Paternity Report in D’s Mainland Appeal, these developments would have a negative impact on P’s chance of success in the trial in Part I.

32.However, I cannot and would not speculate what would be the conclusion of the DNA Report, and whether the GZHC would give some negative comments on the Paternity Report. I have to decide D’s Security Application on the basis of the evidence now before me. Based upon the materials now available, I reach the conclusion as stated §30 above. Accordingly, in my judgment, P is not liable to offer security for D’s costs incurred in Part I. If there is any development in these proceedings in future which has a significant impact on P’s chance of success in Part I, that development would constitute a material change of circumstances. If there is indeed a material change of circumstances, D may make an application for security for D’s costs in Part I at that time.

33.The outcome of Part I would have an important impact on Part II.

(1) If the Court rules against P on the Paternity Issue in Part I, that would be the end of these proceedings. In this scenario, there would be no Part II.

(2) If the Court rules in favour of P on the Paternity Issue in Part I, that would mean that P is the natural biological son of the Deceased, and P is the only son of the Deceased. All these would be taken into account in Part II in considering whether this case is falling within the first exception (ie where the litigation is caused by the conduct of the Deceased by making no specific provisions to P (being the Deceased’s only son) and/or Madam Liu (being the Mother of P) in the Will) and/or the second exception (ie where circumstances lead reasonably to an investigation of the Will’s validity) in the Nina Kung case.

(3) Further, if P is successful in Part I, the Court may also make findings on the credibility and/or reliability of D. For example, the Court may make a ruling on the matters pleaded by P in §3 of the Reply and Defence to Counterclaim, ie at all times, to D’s actual knowledge, Madam Liu is Siu Man, and P is the son of the Deceased and Madam Liu. If the Court make some adverse findings on D’s credibility and/or reliability, those findings would be relevant in Part II in considering whether this case is within the second exception in the Nina Kung case. Those findings would also be relevant in considering the costs of the application (which will be made by P if the Will if valid) for an order removing D from the office of the sole executor of the Deceased’s estate.

34.For the reasons above, I am of the view that D is not entitled to seek security for D’s costs in Part II before knowing the outcome of Part I.

35.Ms Eu SC submits that Part I is an indispensable part of these proceedings. If D succeeds in Part II, that would mean that D is the ultimate successful party in these proceedings, and D should get all the costs of these proceedings. Hence, according to Ms Eu SC, P should be required to provide security for D’s costs up to the conclusion of these proceedings now. With respect, I am unable to agree. In my view, the Paternity Issue in Part I is distinct and separate from the issues in Part II. The time and costs spent in each part would be substantial. I take the view that there should be one costs order covering Part I, and another costs order covering Part II. In the scenario that D fails in Part I but succeeds in Part II, there is no reason why D should be awarded costs of the entire set of proceedings. One must not forget that substantial costs are incurred in Part I, and D is the unsuccessful party in Part I. Costs should follow the event.

36.Ms Eu SC also submits that if I dismiss D’s Security Application, D would not be able to apply for security for costs again in these proceedings, regardless of the outcome of Part I. With respect, this is not correct. My view has been clearly stated in §§27-34 above. For avoidance of any doubt, I would state that my ruling in this decision would not prevent D from making another application for security for costs after the conclusion of Part I.

37.Having considered D’s Security Application afresh as if the same came before me for the first time, I am of the view that D’s Security Application should be dismissed.

Disposition

38.I dismiss D’s appeal. Costs should follow the event. I make a costs order nisi that costs of D’s appeal be to P forthwith, with a certificate for two counsel, and those costs be summarily assessed. Unless there is an application by a summons for variation of the costs order nisi within 14 days from the date of this decision, the costs order nisi will become absolute without a further order. There be leave to P to lodge and serve a bill of costs (limited to 2 pages) for summary assessment within 7 days after the costs order nisi becoming absolute, and leave to D to lodge and serve a list of objections (limited to 2 pages) within 7 days thereafter.

39.Lastly, it remains for me to thank all counsel for the helpful assistance rendered to the Court.

Ms Frances Lok, SC leading Mr Kwan Ping Kan, instructed by, K.B. Chau & Co. for the Plaintiff

Ms Audrey Eu, SC leading Ms Carol Wong, instructed by ONC Lawyers, for the Defendant