Liu Kaibang, A Minor, By His Next Friend and Mother Liu Lijuan v. Lai Joseph Tak, in His Personal Capacity and in His Capacity As the Executor of the Estate of Lai Dennis

HCAP 44/2023

[2025] HKCFI 3105

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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D E C I S I O N

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Introduction

1.On 3 June 2025, I handed down a written decision (“the Decision”)[1], in which I dismissed 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. On 17 June 2025, D took out a summons (“the Summons”) for leave to appeal against the Decision. I have directed that the Summons be determined on paper without an oral hearing. The parties have lodged their respective written submissions in accordance with my directions, and I have considered the same. For ease of reference, the abbreviations used in the Decision are adopted herein.

2.In this application, P is represented by Mr Kwan Ping Kan, and D is represented by Ms Carol Wong.

The principles

3.Leave to appeal would only be granted if the appeal has a reasonable prospect of success (which means that the prospect of success is reasonable and more than fanciful, without having to be probable), or there is some other reason in the interests of justice why the appeal should be heard.[2] What is required is a reasonably arguable appeal. Merely showing that an appeal is “arguable” and “not fanciful” is insufficient.[3]

4.D’s application for security for costs is made under Order 23 rule 1. It is trite that whether the Court would order security for costs under Order 23 rule 1 is a decision made as a result of an exercise of discretion of the Court.[4] In order to succeed in the intended appeal, D has to overcome a high hurdle.[5] It is well established that the Court of Appeal would not interfere merely because it would have reached a different conclusion had it been hearing the application at first instance.[6] The Court of Appeal would only interfere where (a) the court below has misunderstood the law or the evidence, or (b) the exercise of discretion by the court below was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.[7] The Court of Appeal is not to exercise an independent discretion of its own – its initial function is one of review only.[8]

5.An appeal from the judgment made by a judge of the Court of First Instance to the Court of Appeal is not a de novo hearing. In the notice of appeal, the appellant has to identify a justifiable basis upon which the Court of Appeal may interfere in the decision of the judge below. The appeal is not a retrial or a de novo rehearing of the application which has already been determined by the court below.[9]

Grounds of appeal

6.The grounds of appeal as set out in the Draft Notice of Appeal annexed to the Summons are as follows:

“1. The learned Judge is wrong in principle to divide the proceedings into two parts for the purpose of assessing whether security for costs should be granted (i.e. Part I being the trial of the preliminary issue on the question of paternity and locus standi of [P]; Part II being the substantive issue on the challenge of the validity of the will dated 20 December 2016 (the “Will”) (§§27, 35, Decision).

a. This is a probate action, not a paternity suit. [P] has to succeed in both Part I and Part II in order to succeed in the action. Even if [P] succeeds in Part I eventually, he will still have to pay the entire costs if he loses in Part II. Accordingly, in determining the question of security for costs, both Part I and Part II should be assessed collectively, not distinctively.

b. It is incorrect for the learned Judge to suggest that if [D] fails in Part I, costs should follow the event and [D] should not be awarded costs of the entire proceedings even if he succeeds in Part II (§35, Decision). [D] is merely acting as an executor in carrying out the Deceased’s wishes. [D] does not know the answer to Part I. In raising the question of locus standi based on paternity (i.e. Part I), [D] is simply performing his duty as an executor to ascertain the relationship between [P] and [D] and it is incorrect for the learned Judge to suggest that there needs to be actual evidence from [D] in support of a case that [P] is not the natural biological son of the Deceased (§30(4), Decision). The raising of such question is wholly justifiable in light of the information available to [D], as described in §9 of the Decision. The question of paternity (i.e. Part I) becomes a live issue only because of [P]’s challenge to validity of the Will under Part II. If [D] is merely performing his duty as an executor under the Will, then in the absence of challenge of the Will by [P] in the present case, there is no need to find out whether [P] is the biological son of the Deceased (i.e. Part I). Hence, Part I is necessitated only by reason of [P]’s challenge under Part II. Accordingly, even if [D] is unsuccessful in Part I but successful in Part II, there is still a reasonable chance that [P] be ordered to pay the entire costs. In any event, the consideration that if [D] is unsuccessful in Part I, costs should follow the event (§35, Decision) (which is denied) may at most be a factor in assessing quantum of security. This is not a factor for refusing to grant security in the first place.

c. Further, Part I is not part of [P]’s pleaded case. [P]’s substantive pleaded case concerns only Part II. Part I existed in light of [D]’s challenge of [P]’s locus standi. The existence of Part I should not be an intervening factor to the learned Judge in the assessment of the merits of [P]’s probate action for the purpose of security for costs. The learned Judge wrongly took into account the existence of Part I when assessing the question of security.

2. The learned Judge erred in holding that [D] is not entitled to seek security for [D]’s costs in Part II before knowing the outcome of Part I (§34, Decision). This ruling is highly prejudicial to [D].

a. First, [D] will be prejudiced as he will be complained of delay. Since this is a probate action which [P] challenges the validity of the Will, the substantive disputes are those stated in the Statement of Claim, namely, Part II as categorized by the learned Judge. As early as the filing of the Statement of Claim, [D] is already in the position to know that [P] is a foreign party and to assess that [P]’s challenge of the validity of the Will is without merits. If [D] does not apply now but only wait until after the outcome of Part I, then such application would be said to be made with delay and not promptly.

b. Second, [D] will further be prejudiced because he will have no protection in relation to the substantial costs already incurred.

i. In relation to costs of Part II, they have been incurred since the commencement of the proceedings as the entire Statement of Claim concerns Part II. Substantial parts of the pleadings and evidence being prepared by [D] throughout the process concern Part II. There has never been a stay of proceedings in relation to Part II. Part I and Part II are running in parallel. [D] will risk not being able to recover the costs already incurred if the security for costs application is only made after the completion of Part I.

ii. In relation to costs of Part I, as recognized by the learned Judge, the amount is substantial (§35, Decision). Part I is very complicated. It requires directions on scientific test on DNA test to be conducted on someone who has passed away almost 7 years ago by now. There had been a contested hearing to determine what DNA test(s) to be conducted, eventually leading to the Order of Winnie Tsui J dated 25 February 2025 directing (i) the paternity test (between the Deceased and [P]), (ii) the uncle test (between [D] and [P]), and (iii) sibling test (between the Deceased and [D]) to be done by a Hong Kong laboratory. Then [P] took out another summons dated 23 April 2025 requesting the variation of the aforesaid order so that a foreign (instead of Hong Kong) laboratory can be appointed. This is again contested. After the performance of the DNA tests in due course, there will be the question whether the PRC paternity report dated 27 May 2016 is to be accepted, and both parties have prepared PRC legal opinion to discuss the status or problems of such report. There will also be other factual evidence from the witnesses in determining the preliminary issue of Part I, such as evidence from [D] and the lawyer who prepared the Will for the Deceased, since they were told by the Deceased that the PRC paternity report was not to be believed. [D] will have no protection of the substantial costs incurred in Part I if he can only apply for security for costs after completion of such part.

iii. Accordingly, if [D] can only apply for security for costs after the completion of Part I, then if [P] fails in Part I, or if [P] succeeds in Part I but fails in Part II, [D] will be deprived of the security for the substantial costs already incurred in both Part I and Part II prior to the completion of Part I.

3. The learned Judge erred in holding that the outcome of Part I would have an important impact on Part II (§33, Decision).

a. It is true that if the court rules against [P] in Part I, that would be the end of these proceedings without Part II (§33(1), Decision). This is precisely why security should be granted now but not later. Otherwise, as stated in §2(b)(i)-(ii) above, [D] will never be given the protection he is entitled for the costs incurred before the completion of Part I.

b. Contrary to the ruling by the learned Judge (§33(2), Decision), establishing paternity relationship between [P] and the Deceased in Part I shall not influence the outcome of the validity of the Will in Part II. A testator may disinherit wholly or in part his children, and leave his property to strangers to gratify his spite, or to charities to gratify his pride, and the court must give effect to his will. The inquiry of the court as regards testamentary capacity must be ‘directed to the testator’s soundness of mind, and not to general questions of perceived morality”: Chiu Man Fu and others v Chiu Chung Kwan Ying, CACV 40/2012, 18 June 2013, §62. Accordingly, it is wrong for the learned Judge to suggest that simply because [P] is shown to be the biological son of the Deceased, it would impact on his assessment on the merits of Part II or on the consideration of the applicability of the first exception in Nina Kung v Wang Din Shin (No 2) (2006) 9 HKCFAR 800 (i.e. where the litigation is caused by the conduct of the testator) and/or the second exception in Nina Kung (i.e. whether circumstances lead reasonably to an investigation of the will’s validity). In any event, since [P] brought this action for his personal benefit with substantial financial gain as explained in §4(b) below, and [P]’s case tends to suggest that [D] was exercising influence over the execution of the Will (see §§ 19(1), (2), (8)-(10) of the Statement of Claim), this can be categorised as hostile litigation and [P] shall bear the costs anyway if his challenge is unsuccessful: Nina Kung, §17; Tan Cheng Gay and others v Tan Choo Suan and Secretary for Justice, CACV 200/2013, 23 May 2014, §55.

c. It is further incorrect for the learned Judge to hold that any findings on credibility of Part I would have an impact on the consideration of the applicability of the second exception in Nina Kung (§33(3), Decision). The question of paternity and the question of validity of the Will are two entirely distinct issues. Even if the court disbelieves [D] in the former question, it does not necessarily follow that the court will disbelieve [D] in the latter question. Further the outcome of Part I depends predominantly on scientific evidence, which has little to do with the credibility of [D]. Any findings on [D]’s position in relation to Part I should not have any impact on Part II.

4. The learned Judge wrongly exercised discretion in assessing the merits of [P]’s case. For reasons explained in §1 above, the focus of the assessment should be on Part II, which [P] clearly does not have a meritorious case.

a. In Part II, [P]’s case to challenge the validity of the Will is a bare assertion. The Deceased passed away in 2018 but [P] (acting by his guardian mother) never entered probate. Instead, he affirmed the Will and asked for provisions to be made to him as “dependent” under the discretionary clause of the executor in the Will, pursuant to which [D] as executor had advanced RMB 9,475,000 over the years.

b. [P] suddenly changed his stance to challenge the validity of the Will by commencing this action in 2023, hoping to set aside the Will so that [P], purportedly the only child of the Deceased, would inherit the entire significant and substantial estate of the Deceased by the law of intestacy. No single piece of contemporaneous documents has been provided by [P] in suggesting that the Deceased lacked testamentary capacity.

c. On the contrary, [D] has provided a large amount of contemporaneous documents, including medical reports and communication between the Deceased and the lawyer who prepared the Will, to show that [D] had testamentary capacity. The lawyer who prepared the Will also put in affirmation to explain the circumstances of the execution of the Will. Further, the Will is substantially similar to an earlier will made in 2015. No suspicious circumstances existed. It is a clear case that [P] does not have a meritorious case in Part II.”

Discussion

7.In my view, D has failed to show a reasonable prospect of success in his appeal by relying upon the grounds in the Draft Notice of Appeal.

8.Ground 1

(1)  There is no reasonable prospect of success in arguing that this Court erred in principle in saying that these proceedings are divided into two parts as a result of the Paternity Directions.[10] In my view, it is an indisputable fact that these proceedings are now divided into Part I and Part II.

(2)  As submitted by Mr Kwan for P, in the Draft Notice of Appeal, there is no challenge to the conclusion of this Court made in §30 of the Decision, ie, P would have a high degree of probability of success in the trial in Part I.

(3)  This is also no challenge to the conclusion of this Court made in §35 of the Decision, ie the Paternity Issue in Part I is distinct and separate from the issues in Part II.

(4)  On the Paternity Issue, P’s case is that notwithstanding the fact that to D’s actual knowledge of the relationship between the Deceased on the one hand and P and Madam Liu on the other hand[11], D still chose to raise the Paternity Issue. If D fails and P succeeds in Part I (which means that P has raised an unreasonable challenge to P’s locus in this case), I do not see any reason why costs would not follow the event.[12]

(5)  I am not persuaded that D has demonstrated a reasonable prospect of success in challenging the analysis in §33 of the Decision. There is no merit in saying that this Court erred in taking into account the existence of Part I when assessing the question of security.

9.Ground 2

(1)  The Court of Appeal would not interfere merely because any ruling made in the Decision is prejudicial to D. In fact, any ruling made by a court may well be prejudicial to a party in the case. As said in the above, the Court of Appeal would only interfere if this Court has misunderstood the law or the evidence, or the exercise of discretion by this Court was plainly wrong such that it was outside the generous ambit within which a reasonable disagreement is possible.

(2)  As a result of the Paternity Directions, Part II would not be heard before the determination of Part I. As per Ground 2(b)(ii), a lot of works would need to be done for the purpose of Part I. At the moment, D should put his resources into the preparation of Part I. There is no logical reason why D would need to incur costs to do the preparation works in both Part I and Part II in parallel and at the same time.

10.Ground 3

(1)  As said in the above, I am not persuaded that D has demonstrated a reasonable prospect of success in challenging the analysis in §33 of the Decision.

(2)  With respect, I am of the view that nothing in this ground can impeach my analysis set out in §33 of the Decision.

(3)  There is no merit in this ground.

11.Ground 4

(1)  By reading this ground as a whole, D is saying that this Court “wrongly exercised discretion in assessing the merits of [P]’s case” in Part II. As a matter of fact, I made no comment on the merits of the parties’ respective cases in Part II in the Decision. My view as stated in the Decision is that (a) “P has a high degree of probability of success in [the trial in Part I]”[13]; (b) “P is not liable to offer security for D’s costs incurred in Part I”[14]; and (c) “D is not entitled to seek security for D’s costs in Part II before knowing the outcome of Part I”[15].

(2)  With respect, nothing in Ground 4 constitutes a justifiable basis upon which the Court of Appeal may interfere in the decision made by this Court.

12.Having considered all the grounds of appeal proposed by D, I am not satisfied that by those grounds collectively, or by any of the grounds individually, D has demonstrated a reasonable prospect of success in his intended appeal. I also do not see any other reason in the interests of justice why the appeal should be heard. Accordingly, the Summons must be dismissed.

Disposition

13.I dismiss the Summons. Costs should follow the event. Costs of the Summons be paid by D to P forthwith, and those costs be summarily assessed. Having considered P’s Statement of Costs and D’s List of Objections, I agree with the objections raised by D. Taking a broad-brush approach, costs are summarily assessed at HK$67,220.

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

Mr Kwan Ping Kan, instructed by K.B. Chau & Co., for the Plaintiff

Ms Carol Wong, instructed by ONC Lawyers, for the Defendant