Nguyen, Phuoc Tieu Phung Executrix of the Last Will of Guidi Ivan, Deceased v. Lee, Sandra Soyong
|
HCAP 15/2024 [2026] HKCFI 6020 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO 15 OF 2024 ________________________
________________________ BETWEEN
________________________
________________________ REASONS FOR DECISION ________________________ 1.The Plaintiff (“P”) has been acting in person[1] in this probate action and the Defendant (“D”) has been legally represented. 2.At the hearing for determination were 4 applications, 3 taken out by P and one by D. In chronological order, they were:
3.At the conclusion of the hearing, I dismissed all 3 of P’s summonses and acceded to D’s Unless Order Summons albeit imposing a different sanction upon non-compliance. I then heard parties on costs, refused to order costs against P to be taxed on indemnity basis as asked for by D for reasons given orally, and ordered P to pay D’s costs of these 4 summonses on party and party basis with certificate for counsel summarily assessed at a total sum of HK$155,000. 4.I said written reasons would be provided, which I do now. Brief background and procedural history 5.I would here only narrate very briefly the barebone background and procedural history leaving unmentioned quite some details that are not pertinent to the 4 applications before me. 6.Mr Guidi Ivan (“the Deceased”) was an Italian national domiciled in Hong Kong. He passed away in Hong Kong by suicide on 20 November 2023. At the time of his passing, he and D, who was his wife, were going through but had not completed their divorce proceedings commenced by the Deceased on 19 October 2022. They have 3 children. 7.P was the girlfriend of the Deceased at the time of his passing. 8.In this action, P, as the Executrix appointed therein, is seeking to propound the Deceased’s Will dated 27 September 2023 (“the Alleged HK Will”) which D hotly contests as invalid. In the Alleged HK Will, the Deceased bequeathed 40% of his estate to P and the remaining 60% to his 3 children equally. According to P, the Deceased made another Swiss Will also dated 27 September 2023, which provided, among others, that the Deceased’s residuary estate in Switzerland be paid to the Executor of, and be distributed according to, the Alleged HK Will. 9.There were some contests between the parties in the Swiss Probate Proceedings, the upshot according to D was that the Swiss Court issued a decision on 19 August 2025 to the effect that no Certificate of Inheritance can be issued to P and a notary, and not P, is entrusted with the administration of the Deceased’s estate in Switzerland. 10.However, according to D, she discovered in December 2025 that a sum of HK$25,054,239.21 (“the JB Sum”), representing the value of the Deceased’s portfolio in Julius Baer & Co Limited, in which the Deceased worked as its Managing Director, was on 31 July 2025 transferred by P from Switzerland to Hong Kong and deposited into P’s bank account in Citibank HK. 11.There is no dispute that the JB Sum is part of the assets of the Deceased’s estate. 12.Upon D’s application by summons filed on 24 February 2026, on 27 February 2026 Q Au-Yeung J made the Injunction Order imposing a Mareva injunction at the value of the JB Sum and imposing a proprietary injunction enjoining any disposal of the JB Sum and making the Disclosure Order by which P shall file and serve an affirmation within 14 days giving a full and true account of the JB Sum with full particulars of all dealings and providing supporting documents including receipts, invoices and other documents evidencing such dealings. 13.Upon her application made on 13 March 2026, time was extended for P to file the Disclosure Affirmation on or before 21 April 2026. As have mentioned, on 15 April 2026, P issued P’s Variation Summons and on 21 April 2026, P issued P’s Extension Summons. Both P’s said summonses were heard before DHCJ Grace Chow on 30 April 2026, who ordered, among others, that they be adjourned to a date to be fixed to be heard substantively before a Judge. The hearing was then fixed to be heard on 22 July 2026. 14.On 2 June 2026, D issued D’s Unless Order Summons. By a consent summons filed on 20 July 2026, made into an order in terms by DHCJ Kent Yee, the substantive hearing scheduled on 22 July 2026 was re-fixed to the date of this hearing at which D’s Unless Order Summons would also be heard. 15.P then issued P’s Interim Protection Summons on 14 September 2026 which I first heard on 22 September 2026 and directed it also to be heard substantively on this occasion. P’s Variation Summons and P’s Interim Protection Summons 16.Both summonses are rather prolix. Each of them contains 6 paragraphs setting out the reliefs sought and many of these have a number of long sub-paragraphs. I do not propose to recite each of the relief sought for the purpose of this discussion. 17.In gist and as I summarized above, essentially P is seeking orders restricting D and her solicitors, and/or undertaking by them, not to divulge to any third party or use in any proceedings or purpose other than this piece of litigation, all the court documents, the documents exhibited, information and materials therein, particularly those information she coined as “Personal Sensitive Information”. She also seeks an order allowing her to redact “Personal Sensitive Information”. 18.As expressed in her affirmations and at this hearing, she was particularly concerned that in compliance with the Disclosure Order, she would have to divulge the details of the spendings of part of the JB Sum not only on herself but also on her minor daughter and would have to provide all the invoices and receipts, and thereby divulging very personal information particularly those relating to her daughter. 19.In support of P’s Variation Summons and more specific to P’s Interim Protection Summons, she exhibited a long email sent by RJ to one of the attesting witnesses of the Alleged HK Will in which RJ first identified himself as a reporter with The Wall Street Journal based in Singapore and then in 12 paragraphs therein made references to some of the details which RJ claimed were “according to court documents” and then RJ pried for answers concerning the divorce, the Deceased’s death, the making of the Wills, and such. P’s case is that D or D’s solicitors must have leaked information or court documents to RJ. 20.As indicated to the parties at the hearing, perusing RJ’s said email, I accepted that the specific references and some details mentioned in RJ’s email were apparently not pieces of information available to any member of the public. 21.However and firstly, before me there is no evidence showing that D or her solicitors have leaked such information or documents to RJ. All P has presently against D and D’s solicitors are pure suspicions. 22.Secondly, it is well established law that a party who obtained discovery may only use the documents thereby disclosed to him for the proper purpose of conducting his own case, and there is an implied undertaking by him not to use them for any collateral or ulterior purpose (Hong Kong Civil Procedure 2026 §24/14A/1). The implied undertaking extends to information derived from the document as well (Crest Homes Plc v Marks [1987] AC 829, per Lord Oliver at 853-854) The implied undertaking is not only binding upon the party to whom the documents have been disclosed, but also extends to his solicitor and to anyone whose hands the document may come (Matthews & Malek QC, Disclosure 5th ed. 2017 at §19.10; Milano Assicurazioni SpA v Walbrook Insurance [1994] 1 WLR 977 at 983D-E; Leung Hong Wah Andy v Shum Wang Chiu and Another [2021] HKCFI 997 at §23). 23.The reliefs sought in these two summonses issued by P, prolix though they are crouched, were already covered and provided for by the well-established implied undertaking, such that in my view it is not necessary and indeed would be redundant for this Court to issue further express orders to give it effect. 24.At the hearing, this Court explained the implied undertaking to P and invited P to identify any specific relief sought in these two summonses not covered by the implied undertaking that she would pursue a specific order thereon. She did not identify any. 25.Thirdly, along the hearing P has informed the Court (and D) orally that she had put aside 60% of the JB Sum for the use and benefit of the 3 children beneficiaries and deposited them into a separate bank account, while she had used part of the remaining 40% for herself and her daughter, and she had the concern mentioned in paragraph 18 above. There was then a discussion between the bench and the parties that the purpose of the Disclosure Order was to enable D to identify, locate and trace the JB Sum. In view of such purpose, if P would expressly state in the Disclosure Affirmation that certain amounts withdrawn from the JB Sum were identified as having been used by her for personal spending (therefore for purposes unconnected with the Estate), in the normal course of events there would be no further utility to D for the purpose of this action to insist on P making further disclosure regarding details of these personal spendings. This general observation D did not disagree. 26.Having said that and conversely, if such disclosure falls within the said purpose of the Disclosure Order, it is well-established that a litigant cannot use privacy as a reason for non-compliance of disclosure. 27.Evidently, any dispute (if any) as to the extent of further details to be disclosed and documentations to be provided should, and can only, be resolved when disclosure has been made and the actual details and documentation further required but the disclosure of which are disputed have been identified. Such being the case, I do not think it appropriate to attempt any pre-emptive variation of the Disclosure Order by way of these detail provisions as P by the two summonses now seeks. 28.By the reasons above said, I dismissed P’s Variation Summons and P’s Interim Protection Summons. P’s Extension Summons and D’s Unless Order Summons 29.Having discussed with the parties the above, P did not insist on the order sought by P’s Extension Summons – the time for filing the Disclosure Affirmation be extended until 35 days after the determination of the P’s Variation Summons. 30.Having heard parties, 14 days from today was accepted by P as sufficient and not unreasonable time to make the disclosure. 31.P did not seriously resist the making of an unless order. Indeed, at the latter part of the hearing, she has been assuring the Court and D that she would make the disclosure within 14 days. Nevertheless, in view of the procedural history that P’s summonses had somehow caused the delay and the fact that more than 7 months have already lapsed since the original deadline for compliance, I was of the clear view that the imposition of an unless order was appropriate. 32.However, I did not regard the sanction sought by D was appropriate. It seems to me a sanction to be imposed against the default of the proving Executrix should not result in the dismissal of the action to propound the Alleged HK Will, in that while the sanction might coerce P to comply with the Disclosure Order, but at the same time P’s default might potentially cause grave prejudice to the other beneficiaries of the Alleged HK Will when they are not responsible for the default. 33.I find, however, eminently appropriate the proposal put forth by Ms Ha at the hearing that the sanction to be imposed upon default of the unless order should be an immediate automatic order that P do pay the full amount of the JB Sum into Court within 7 days after default. I so ruled at the hearing. There were then further discussions regarding the terms of the unless order, among others, concerning the provision to P of two letters by D’s solicitors within the day of the hearing giving D’s express consent respectively to Citibank and Bank of China to issue bank statements to P, and providing for liberty to apply by P by letter within certain time to extend the time for compliance of the unless order in case the two banks provide bank statements to P unduly late. 34.Accordingly, I acceded to D’s Unless Order Summons and made an unless order with the detail terms broadly described above. 35.I thank Ms Ha for her assistance.
The Plaintiff appeared in person Ms Terri Ha, instructed by Lee Law Firm, for the Defendant |
Summaries and metadata are generated from the judgment. Report an error
Cases cited in this judgment