Re Chum Tuen Ho

HCMP000240/1971

IN THE SUPREME COURT OF HONG KONG

(PROBATE JURISDICTION)

MISCELLANEOUS PROCEEDINGS NO. 240 OF 1971

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Coram: Huggins, J. in Chambers.

Date of Judgment: 20th October, 1971.

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JUDGMENT

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1. The two Applicants seek an order appointing them to be administrators of the personal estate of their late sister, CHUM Tuen-ho. The Deceased died leaving two brothers and three sisters, all of full age. One brother and two sisters are in China and, I am told, it is impossible for them to come to Hong Kong to make application themselves. One of the brothers (the one in China) has himself a son, CHUM Cheuk-yu, who is of full age. CHUM Cheuk-yu has filed an affidavit saying that he does not wish to apply for Letters of Administration. The Applicant CHUM Bing has four sons: the eldest of them, aged 28, is studying in Canada and the other three are all minors.

2. When the two Applicants petitioned for Letters of Administration the Registrar questioned whether it was proper for a grant to be made to them without their clearing off the descendants of the collaterals of the Deceased. The solicitor for the Applicants contended that it was not necessary to clear off these descendants because, he said, the English law applied and therefore the collaterals were the persons who were entitled to administer. The Registrar thought that the proper law was the T'sing law and that under the T'sing law the descendants of the collaterals had the right to administer. It was as a result of this disagreement that the present application came before Mr. Registrar Jones. He was made aware of the doubts which had been expressed and therefore referred the matter to a judge. It is, however, right to mention that Mr. Registrar Jones was not made aware that a second argument would be advanced in support of the present application. Before me Mr. Rowdget Young has submitted that even if the proper law in matters of administration be the T'sing law, nevertheless he is entitled under the terms of s.36 of the Probate and Administration Ordinance 1971 to the order which he seeks. That section says that

"          Where a person dies wholly intestate as to his estate ............................. and where it appears to the court to be necessary or convenient to appoint some person to be the administrator of the estate of the deceased person .................. other than the person who, if this Ordinance had not been passed, would by law have been entitled to a grant of administration of such estate, the court may subject to section 25, appoint such person as the court thinks fit to be such administrator ......".

Mr. Young has not been able to cite any case where the circumstances were comparable and the word "convenient" has been considered, but he asked me to hold that in the present circumstances it would be convenient that the two Applicants should be given a grant of administration. He says that Mr. CHUM Cheuk-yu, having renounced his right to a grant, has been cleared off. The three infant sons of CHUM Bing are not entitled to a grant and that leaves only CHUM Wai-yuen, who is studying in Canada, and the three collaterals who are in China. He submits that it is manifestly convenient in those circumstances that the two persons who are resident in Hong Kong should be allowed to administer.

3. Although I do not have any evidence as to the length of stay of CHUM Wai-yuen in Canada, nevertheless the fact that he is studying there for the time being and is not permanently in the Colony would clearly make it difficult for him to administer the estate, while the position of the three collaterals in China equally makes it more convenient that the two Applicants here should administer. In those circumstances it is unnecessary for me to decide the question which might hereafter have to be decided, whether in matters of administration as distinct from matters of succession the proper law to be applied is the English law or the T'sing law. I find and hold that it is convenient in the present case that the two Applicants be granted administration and I so order.

20th October, 1971.

Representation:

Rowdget Young for Applicants.