Ku Camey v. Ku Scarlet, The Executrix of the Estate of Chen Elsie , Deceased and Another

CACV 561/2024, [2026] HKCA 1532

On Appeal From [2024] HKCFI 3316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 561 OF 2024

(ON APPEAL FROM HCA NO. 1482 OF 2022)

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BETWEEN

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JUDGMENT

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Hon Anthony Chan JA (giving the Judgment of the Court) :

1.This is the Summons filed by the Plaintiff (“Camey”) on 12 December 2025 (“Summons”) for (a) leave to file and serve out of time a Respondent’s Notice (“Respondent’s Notice”) and (b) leave to adduce new evidence at the hearing of this appeal, namely, two letters respectively dated 18 June 2025 and 9 July 2025 (“Letters”).

2.After reviewing the evidence and submissions filed by the parties, we are of the view that it is appropriate to dispose of this application on paper pursuant to Order 59, rule 14A(1) of the Rules of the High Court, Cap 4A (“RHC”).

Background and procedural history

3.Camey, the 1^st Defendant (“Scarlet”) and the 2^nd Defendant (“Miranda”) are the daughters of Madam Chen Elsie (“Deceased”). On 17 December 2009, the Deceased made a Will disposing of her assets in Hong Kong, and her daughters are amongst the beneficiaries under the Will. The Deceased passed away on 21 August 2021. In July 2022, probate was granted to Scarlet, who had been appointed the executrix under the Will.

4.In December 2022, Camey commenced these proceedings against Scarlet to remove her as executrix and to appoint a replacement administrator (“Action”). Miranda was later joined as a necessary party.

5.By a Decision dated 25 November 2024 (“Summary Judgment Decision”), Tsui J (“Judge”) allowed Camey’s application for summary judgment. The Judge found that Scarlet had failed to render a proper account with supporting documents, and there was no proper administration of the estate (“Estate”) ([63] and [67]).

6.By a Notice of Appeal filed on 23 December 2024, Scarlet appeals against the Summary Judgment Decision. By a Consent Summons filed on 25 April 2025 (“Consent Summons”), Camey and Scarlet agreed, inter alia, that Camey should be allowed to file a respondent’s notice out of time (“Earlier R/N”).

7.On 13 May 2025, Au JA made the directions that :

“1. The parties shall inform the court promptly the results of their respective applications for leave to appeal from [the Judge] as indicated in their respective letters.

2. The court will give further directions in relation to the Consent Summons after being informed of the result of those leave to appeal applications.”

8.On 19 November 2025, the Judge handed down a Decision (“Leave Decision”) on 4 applications taken out by Camey and Scarlet. These applications are not relevant for the present purpose. However, the Letters were relied upon as new evidence in support of one of the applications, namely, an application by Camey for leave to appeal against the decision of the Judge not to disallow the indemnity of Scarlet’s own costs[1] by the Estate. The Judge made the following observations on the Letters :

“18. Following the grant of the summary judgment, Scarlet, as ordered, furnished an account of the estate in late May 2025. Ms Fanny Lai, the court-appointed administrator, wrote to Scarlet’s solicitors by letter dated 18 June 2025 raising a number of queries, and demanding explanation and repayment of six sums of money.

19. By letter dated 9 July 2025, Scarlet’s solicitors replied, responding to some of the queries. Materially, she made repayment of two sums.

20. The first sum was in the amount of US$50,000, which was withdrawn by Scarlet from the deceased’s account at Hang Seng Bank in July 2020, namely while the deceased was still alive. Scarlet’s solicitors explained as follows :

‘Second, as to the USD50,000 withdrawal, we are instructed that that sum was to cover future travelling expenses for her and the Deceased from California to Shanghai after quarantine was lifted to help the Deceased organize and return to Hong Kong. As the USD50,000 sum was unspent, our client is agreeable to returning the sum of USD50,000 with interests to the Estate.’

21. The second sum was in the amount of HK$68,831.89.  According to the bank statements disclosed by Scarlet, Scarlet continued to use the supplementary credit card given to her by the deceased after the latter passed away. The administrator demanded the repayment of this sum ‘without prejudice to [her] right to report this matter to the police’. Scarlet’s solicitors replied :

‘Our client is prepared to repay to the Estate the sum of HK$68,831.89, solely with a view to avoiding any protracted argument with you over the spending of the said sum. That said, we fail to see why, pending any explanation by our client, your first request for repayment was made with a threat to report the matter to the police. …’

…

93. … I do not consider that the two letters, when read together, can be taken as an admission by Scarlet that she had committed misconduct while administering the estate. I reject Camey’s submission in this regard. At the hearing of the new evidence summons, Scarlet’s solicitors submitted that the letters amount to Scarlet’s acknowledgment that she failed to return the two sums to the estate. I accept that submission and would treat the new evidence as having such effect.”

9.On 12 December 2025, Camey took out the Summons.

The Respondent’s Notice

10.The Respondent’s Notice seeks to affirm the Summary Judgment Decision on the following additional grounds :

“(1) [Scarlet] took hostile acts against [Camey] since or before the grant of probate was obtained.

(2) [Scarlet] is in a position of conflict and should be removed as the executrix of the [Estate] in that there is a need to investigate the amount of the assets of the estate and the ways in which she dealt with the assets of the Deceased before and after the death of the Deceased and an independent administratrix should be appointed to conduct such investigation as she thinks fit for the benefit of the estate of the Deceased.

(3) That the [Judge] ought also find and hold as a ground for removal in [Scarlet’s] failure to provide any or any meaningful account as to what happened to the sum of $10,500,084 of the Deceased’s money admittedly transferred into her … own account since 28^th May, 2021 which sum should at the very least have earned some interests; [Scarlet’s] attitude on that sum, which was plainly wrong, was that she could even refuse to distribute or give credit for it, and that since she had gratuitously made that sum available, she could ignore [Camey’s] rightful requests for information, but whereas as a matter of law, [Scarlet] being an agent/attorney of the Deceased, and assuming the Deceased still had capacity on 28^th May, 2021, by choosing to mix the Deceased principal’s money with her own, [Scarlet] was under an absolute duty to render proper and full account, in this case the position was further exacerbated by the fact that [Scarlet] then abused her position in the capacity as executrix of the [Estate] to in effect ‘condone’ her own aforesaid wrongful act carried out in her capacity as agent/attorney.

(4) [Camey’s] complaint in paragraph 3 above was shown to be correct/justified as evidenced by [Scarlet’s] repayment of 2 sums of USD50,000.00 and HK$68,831.89 to the new administratrix appointed by the Court. The 2 repayment cheques were enclosed in [Scarlet’s] reply letter to the new administratrix during investigation of the assets of the Estate.”

11.Only Grounds (1) and (2) were advanced in the Earlier R/N.

12.The analysis here should begin with the applicable principles. In The Joint & Several Liquidators of China Medical Technologies, Inc v The Bank of China (Hong Kong) Ltd & Ors [2021] HKCA 1504 at [15] per Barma JA, it was held that:

“… the modern approach to case management of appeals requires that in all cases where a late application is made, all relevant factors should be taken into account. In the present case, the application is for leave to file a respondent’s notice out of time. Even where the respondent’s notice is a notice to affirm, it seems to us that the court is entitled to have regard to the nature of the new grounds sought to be advanced, in particular whether they relate to grounds advanced previously on material previously deployed, so that it can truly be said that they will not take the appellant unawares, and will not impose an undue burden on him in responding to them. Factors such as the extent of the delay, and the closeness to the date fixed for the hearing of the appeal will also be relevant, as will consideration of prejudice to the appellant, and the strength of the arguments sought to be introduced.”

13.Secondly, it is important to understand the Summary Judgment Decision. The approach of the Judge and the issue before the court were set out in [7] to [8] of that Decision :

“7. These factual disputes are not capable of being resolved on affidavits. For the purpose of the summary judgment application, I shall assume the facts in favour of Scarlet. That is to say, I shall proceed on the factual assumption that the deceased did not tell Camey that she had HK$20,000,000 in 2017 and that the deceased was not suffering from dementia in May 2021.[2] It is therefore unnecessary for me to recite the parties’ opposite cases on these two matters in this decision.

8. Camey’s case for the removal of Scarlet is based on the latter’s conduct in relation to the administration of the estate. The material events took place from after the probate was granted in July 2022. Both Camey and Scarlet have adduced as evidence contemporaneous communications between them, including emails, WhatsApp messages, WeChat messages and letters. There is no dispute that such communications took place. Nor is there any dispute over how such communications should be interpreted. The issue before me is therefore not a factual one as to whether, for instance, an alleged incident indeed took place or not. Instead, I am to decide whether Scarlet’s conduct, as disclosed by the undisputed evidence, amounts to proper grounds for removal.”

14.The Judge then considered the undisputed contemporaneous documents in detail. The submissions of Camey’s counsel, Mr Lau[3], followed in [39] to [43] of the Summary Judgment Decision :

“39. Based on the above, Mr Raymond Lau, counsel for Camey, makes two submissions.

40. First, before this action, Scarlet failed to, and in fact refused to, provide a proper account together with supporting documents regarding the administration of the estate. The 1^st, 2^nd, and 3^rd Calculations[4] were deficient in that they were not supported by documents, such as bank statements. Scarlet was therefore in breach of her duty under section 56 of the Probate and Administration Ordinance, Cap 10. Even after the present action was brought, the Revised Estate Account is still deficient and the documents put forward are inadequate.

41. Second, Scarlet has failed to distribute one-third of the residuary estate to Camey and she unreasonably imposed the condition that the distribution would be put on hold unless Camey agreed to Scarlet’s calculations.

42. For these reasons, Camey seeks the removal of Scarlet as the executrix pursuant to section 33(3) of the Ordinance on the basis that the removal is necessary for the due and proper administration of the estate and is in the interests of the beneficiaries. …”.

“43. … [Mr Lau] also confirmed that the action would be entirely disposed of, if summary judgment is granted.”

15.Next, the Judge considered Scarlet’s reply or position on the complaints made by Camey about (1) the Hang Seng Bank account; (2) Scarlet’s failure to provide accounts and supporting documents before the Action; (3) the condition for the final distribution; (4) the Revised Estate Account and the documents provided in Scarlet’s opposing affirmation; and (5) proper administration of the Estate[5].

16.The Judge went on to consider whether Scarlet’s conduct as demonstrated by the undisputed contemporaneous documents amounted to proper grounds for removal[6]. There is a useful summary of the findings made by the Judge in a later decision by her dealing with the Scarlet’s applications for variation of costs order nisi and stay of execution pending appeal ([2025] HKCFI 1564), [17] :

“… I found that it was clear that Scarlet had failed to fulfil her duty to render proper accounts to Camey, notwithstanding the persistent demands made by the latter’s solicitors. Before the action was commenced, Scarlet did not provide any supporting document to Camey in relation to the 1^st, 2^nd and 3^rd Calculations. After the summary judgment application was taken out, Scarlet produced the Revised Estate Account together with supporting documents. However, I found that that account was still deficient and there were still missing supporting documents. Worse still, in the absence of a proper account, Scarlet had insisted that Camey agree to her calculations, otherwise distribution would be put on hold. I held that it was improper for Scarlet to impose such a condition on the final distribution as she did, as it was not possible for Camey to properly verify her entitlement in the estate in the absence of proper information. What Scarlet did was clearly prejudicial to the interests of Camey as a residuary beneficiary. For these reasons, I concluded that Scarlet’s conduct was such as that she should be removed as the executrix of the estate. …”

17.The decision as to whether to grant leave to file the Respondent’s Notice out of time is an exercise of discretion based on the consideration of all relevant circumstances (see China Medical Technologies). There can be no serious dispute that the delay of 11 months is significant[7]. The reason for the delay given by Camey, that the filing of the Respondent’s Notice was “side-tracked and delay” due to the need to deal with a number of other applications, is not a good one, especially when she has been legally represented.

18.As regards the Grounds advanced in the Respondent’s Notice, Mr Yu, on behalf of Scarlet, submits that neither Ground (1) (hostility) nor Ground (2) (conflict of interest) had been pleaded in the Re-Amended Statement of Claim (“RASOC”). Mr Lau does not seek to dispute the submission in respect of Ground (1). Mr Lau says that Ground (2) was pleaded in para 14 of the RASOC. However, that plea was based on the allegation of Scarlet’s knowledge of the Deceased’s dementia. As the Judge made clear in the Summary Judgment Decision, [7], the application before her was resolved with assumption of facts in favour of Scarlet, ie, the Deceased was not suffering from dementia. Indeed, the Judge was not required to resolve any factual issue ([8]). In the premises, it is difficult to see any legitimate basis for Camey to advance Grounds (1) and (2).

19.In respect of Mr Lau’s reliance on the materials or evidence before the Judge in support of Grounds (1) and (2), it must be remembered that Scarlet had provided explanations on various accusations made against her, eg, the removal of funds from the Hang Seng Bank account, which was one of the key allegations made by Camey. As the Judge pointed out, factual disputes were not capable of being resolved on affidavits. This court would not be in any better position to resolve factual disputes on appeal. Further, Mr Lau has provided no justification as to why Camey should be allowed to change her stance such that instead of relying on undisputed contemporaneous documents to make out her case, she is entitled to rely on disputed evidence on which no finding was made by the Judge[8].

20.Mr Lau also relies on the Consent Summons and contends that there is no valid ground for Scarlet to retract her consent. The fragility of this submission is that Camey is not holding Scarlet to her consent on the Earlier R/N. Camey is not content with the Earlier R/N and seeks to expand on it. Scarlet has not agreed to the Respondent’s Notice.

21.Ground (3) (failure to account) is convoluted and pregnant with a number of complaints about Scarlet, namely, her attitude, mixing of funds and condoning her own wrong. Such a ground is not properly formulated and must be rejected for this reason alone. In any case, as submitted by Mr Yu, the Judge had considered Scarlet’s duty to render a proper account of the Estate and made a finding that she had failed to do so. It is difficult to see that this Ground adds anything to the Summary Judgment Decision.

22.Ground (4) is premised on the Letters. Camey’s application to adduce post-judgment evidence on appeal will be considered below. There is force in Mr Yu’s submission that it is inappropriate to deploy the new evidence in the Respondent’s Notice when Camey has not obtained leave to rely on such evidence. Further, if leave is granted, the new evidence can be relied upon to support the Judge’s finding that Scarlet had failed to render a proper account of the Estate. There is no need for a respondent’s notice.

23.Whilst it is true that no hearing date has been fixed for this appeal and Scarlet is unable to point to any substantial prejudice caused by Camey’s delay in filing her respondent’s notice, in light of the above analysis of the grounds sought to be introduced by the Respondent’s Notice, we see no good reason to extend the time for the filing of the same.

The Letters

24.There is no dispute that the Letters came into existence well after the Summary Judgment Decision. The considerations in Ladd v Marshall [1954] 1 WLR 1489 do not apply. The court has a wide discretion to admit fresh evidence as to matters which have occurred after the trial or hearing under Order 59, rule 10(2) of the RHC: Cheung Wing Kuen Samuel v Ip Chui Sum [2022] 3 HKLRD 709, [43].

25.We bear in mind that the Letters are incontrovertible, and they may fortify the Judge’s finding that Scarlet had failed to render a proper account of the Estate, which was central to the decision to remove Scarlet as the executrix. In the premises, we allow the application to introduce the Letters as fresh evidence on appeal.

Disposition

26.For the reasons aforesaid, we decline to grant leave for the Respondent’s Notice to be filed and served out of time and para 1 of the Summons is dismissed. Paragraph 2 of the Summons (leave to adduce the Letters at the hearing of this appeal) is allowed.

27.Paragraph 3 of the Summons (leave to withdraw Camey’s summons filed on 28 March 2025) is allowed with costs to Scarlet at the sum of HK$2,250[9].

28.We make an order nisi that the costs of para 1 of the Summons be to Scarlet and summarily assessed at HK$80,000. In the absence of any variation application made within 14 days from the date of this Judgement, the order shall become absolute.

29.The costs of para 2 of the Summons be in the cause of this appeal.

30.In light of this Judgment, para 1 of the Consent Summons is redundant. Save for para 1 on which no order is made, we make an order in terms of paras 2 and 3 of the Consent Summons.

31.Finally, we note that 4 out of 8 of the affirmations contained in the hearing bundles were made by solicitors. These were substantive affirmations, which regrettably contained much inadmissible submissions. Evidence should generally be given by the lay clients (see Hong Kong Civil Procedure 2026, vol 1, [41/5/4]). Inappropriate conduct by professionals may not only attract the disapproval of the court, costs sanction may follow.

Mr Raymond Lau, instructed by Foo, Leung & Yeung, for the Plaintiff

Mr Axis Yu, instructed by Iu, Lai & Li, for the 1^st Defendant