Chan Wing Sze v. Chau Kin Hung

HCAP000003/1983

P.J. No. 3 of 1983

IN THE HIGH COURT OF JUSTICE

PROBATE JURISDICTION

BETWEEN

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Coram: Hon. Mantell J. in Chambers.

Date of Hearing: 25th November, 1983.

Date of Judgment: 25th November, 1983.

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JUDGMENT

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1. The plaintiff in this action is a young lady who, I think, had her twenty-fifth birthday yesterday. Some of her history, certainly in the not so recent past, has been quite unhappy. When she was much younger, her parents lived in Canal Road West in Wanchai. Her father was considerably older than her mother. She had a younger brother. He was born in 1960 and had he survived would now be twenty-three. In 1972, I have been told that the plaintiff's mother committed suicide. She was relatively young at the time. In 1975, her father, who by then was turned seventy years of age, made a will in which he left his property to the son, the plaintiff's brother. On 31st March 1976, the plaintiff's brother, who was fifteen years of age disappeared in most mysterious circumstances. He had gone out and simply did not come home. What precisely happened to him will never be known.. Following his disappearance, the plaintiff and her father did all they could to seek him out by goingto the police, placing advertisements in newspapers, reporting the matter to the United States Consulate because the father was a United States citizen and then, the father himself died just over a fortnight after the disappearance of his only son.hat was on 16th April 1976 and the death certificate is exhibited to one of the plaintiff's affidavits. He was, of course, no longer young, I think I am right in saying seventy-two years of age, and I think the cause of death was broncho-pneumonia but I would have little hesitation in finding if it should be necessary, which it is not, that the disappearance of his only son can have done nothing but undermine his already failing health. Thereafter, the plaintiff went to the United States and, more particularly I think, for a period as a student to Hawaii.

2. The defendant in this action had been appointed executor by the terms of the will and it was his task in these unhappy circumstances to administer the estate. In due course, the plaintiff returned to Hong Kong. By this time it was 1983 and nothing had been heard of her younger brother for upwards of seven years. Of course, it was in the interests both of herself and of the defendant to seek the court's assistance so that the estate of her father could be administered and so that, if appropriate, she might receive as beneficiary under the terms of her father's will, standing, as she does, second in line to her brother if it be the case that her brother has died intestate and without issue. And so, by this action, the plaintiff seeks certain declarations relating to her brother which would result in consequences important to the defendant and in addition, she claims certain other relief directly affecting the defendant.

3. I say at once with regard to the second part of her claim that it has been compromised on amicable terms and there is no allegation or suggestion made now by the plaintiff affecting the propriety of the defendant's actions as executor of her father's estate And also let it be noted that the defendant was a very close friend of the plaintiff's father. But what does remain is the position of the plaintiff in relation to that of her brother and her right to benefit under the terms of her father's will.

4. Now, it is settled law that in the absence of any other evidence, a person's disappearance over a period of seven years or more,during which he is not being heard o will lead in an appropriate case to the presumption that he has died and to a court making a declaration to like effect. In this case, the plaintiff's brother has not been heard of from the day that he left home on 31st March 1976. Anyone who might have been expected to hear of him or from him, both in Hong Kong or China and the United States where he has relatives, has not heard anything of or about him at all. There has, as I have already said, been no response to advertisements seeking information as to his whereabouts and those enquiries which the plaintiff has had made on her behalf since returning to Hong Kong this year similarly have been fruitless. He has never applied for or been granted an adult's identity card. There is no record of his having left Hong Kong. In the result, I have not the slightest hesitation in this case, relying as I do also upon the well established common law presumption,in finding that the plaintiff's brother has died and I shall, in due course, make a declaration in those terms. But it is not just the fact that he has died which is important to the plaintiff and, if I may say so, to the defendant also. The question is also one of date, in other words, when it was he died and also as to whether he died celibate, that is to say, unmarried and without issue. Well, had he married or had there been issue, it is likely, so I find, that some record would be available as to those matters either in Hong Kong, or elsewhere where enquiry has been made, or that someone of whom enquiry has been made would have  heard of them. And, as I have said, had I been pressed to make a finding in terms, I would have been likely to find that this boy, for that is all he was, died at about the time of his disappearance. That seems to me to be a reasonable inference to draw from all the evidence which is available and I would have made it. But it is not necessary for me to go as far as that because I have been referred to the case of in re Benjamin ⁽¹⁾ where precisely the kind of problem which confronts the parties to this action, then faced the personal representatives of the father of a young man who had been missing over a number of years, and who had, in Tact, last been heard of getting onto a train but, who so far as was known, never reached his destination. In that case, the learned judge found it sufficient for the purposes of the parties simply to make a declaration that the personal representatives of the estate should be at liberty to distribute the assets of the estate upon the footing that the testator's son was unmarried, had no issue and did not survive the testator and that is what I propose to do in this case since the court will not make a declaration which goes beyond that which is necessary. I, therefore, make a declaration that the said Chan Koon Hung has died. I further make a declaration that the said Chan Koon Hung died intestate, unmarried and without leaving any issue. I order that the defendant, as personal representative of the deceased, be at liberty to distribute the assets of the estate of Chan Koon Tai, alias Chan How, alias Chan Toe, alias Benson Chan, alias Chan Benson upon the footing that the said Chan Koon Hung has died and at the date of his death was unmarried and without issue and that he did not survive the deceased. Thereafter by consent, I order that the defendant pay the sum of $119,045 to the plaintiff's solicitors within 7 days in full and final satisfaction of all the plaintiff's entitlement to the estate of the deceased and of all claims against the defendant as executor and trustee of the estate of the deceased save for what transpires in the next order which I make, which is that the defendant do transfer or assign or vest the property known as Flat B-7, 4th floor, Wing Tak Mansion, Canal Road West, Hong Kong to or in the plaintiff or to her direction absolutely and do cause the transfer of the 236 second preference shares in the name of the deceased in the Bank of Canton Limited to the plaintiff as soon as practicable, and that the costs of such transfer, assignment or vesting be borne by the plaintiff. I give liberty to apply and I make no order as to costs.

(1)    [1902] 1 Ch. 723

Representation:

K.H. Woo (Woo & Woo) for Plaintiff.

Benjamin Yu (T.S. Tong & Co.) for Defendant.