Ho Wai Yin and Others v. Cheng Suet Yee

HCAP 18/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 18 OF 2003

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BETWEEN

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Before: Hon A Cheung J in Chambers

Date of Hearing: 28 June 2005

Date of Judgment: 28 June 2005

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J U D G M E N T

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1.I have before me an application for judgment by admission based upon some alleged admissions made by the Defendant in correspondence between the solicitors of the parties. 

2.At issue in this probate action is whether the Defendant is a natural daughter of the deceased.  On the basis that she is a natural daughter, the Defendant has successfully obtained a grant of letters of administration of the estate of the deceased. 

3.The Plaintiffs in this probate action say that she is not a natural daughter of the deceased.  Some DNA tests have been conducted which the Plaintiffs say show that the Defendant is not a natural daughter of the deceased.  The Defendant does not accept the results of the DNA tests done as being conclusive. 

4.In an earlier hearing between the parties before me, I gave an order that DNA samples be obtained from the remains of the deceased and his deceased wife for the purpose of conducting a further DNA comparison test so as to determine whether the Defendant is a natural daughter of the deceased.  Dissatisfied with my decision, the Defendant has lodged an appeal from my order to the Court of Appeal.  The appeal is yet to be heard. 

5.On 24 March 2005, the Defendant, through solicitors, wrote to the Plaintiffs’ solicitors as follows:

“Dear Sirs,

Re: High Court Probate Action No. 18 of 2003

We refer to your letter dated 18^th March 2005.

On 13^th January 2005, our client filed a Notice of Appeal under CACV No. 22 of 2005 against the judgment of the Honourable Mr Justice A. Cheung dated 17^th December 2004.  It is always our client’s stance that the said Judgment should not have been made in the first place for the reasons that:-

(i)   the DNA test is a grave disturbance and disrespect to her late parents; and

(ii)   the accuracy and reliability of the DNA test is highly questionable.

In order to express the greatest respect and fidelity towards her late parents, our client is willing to avoid the DNA test at all costs.  We are instructed that for the sole purpose of these proceedings, our client is prepared to make the concession that she is not a natural but a lawfully adopted daughter of her late parents.  Our client will in due course proceed to re-amend her Defence to reflect her such concession as appropriate.  In this regard, we enclose a draft Consent Summons for, inter alia, re-amendment of the Defence of our client and stay of execution of the said Judgment for your attention.  We shall send you the draft of the Re-amended Defence as soon as it is settled by our Counsel.

Since the parentage of our client will no longer be an issue in these proceedings, it is wholly unnecessary to conduct the DNA test.

Yours faithfully,

[Signed]

HOBSON & MA”

Enclosed with the letter was a consent summons in draft providing for the re-amendment of the amended defence, a stay of execution of my order and the withdrawal of the Defendant’s appeal from my order. 

6.On 29 March 2005, those representing the Plaintiffs replied as follows:

“Dear Sirs,

Re: High Court Probate Action No. 18 of 2003

We refer to your letter of 24^th March 2005.

We do not accept your client’s change of stances on the basis of the alleged concession.  Quite to the contrary, it is our view that our expert report has already demonstrated to the Court that your client and all our clients do not have any blood relationship, i.e. your client is not the natural daughter of the deceased, Cheng Fong.  The execution of the Order made by the Honourable Mr. Justice A. Cheung on the 17^th December 2004 would only confirm our finding by direct comparison test.  We do not see any accuracy and reliability issues on such test bearing in mind that it has control elements (from our clients’ DNA) on the test.  In the circumstances, we would only accept your client’s unconditional admission that she is not the natural daughter of the deceased, Cheng Fong so that the examination of the ash bones of the deceased, Cheng Fong and Yuen Wong can be dispensed with.

As to your intended amendment on your client’s Defence, please let us have a copy of your draft Defence for our consideration.

If we do not hear from you on or before 2^nd April 2005, we shall proceed to take the samples of bone ashes in the absence of your client and conduct the DNA tests in due course.

All our clients’ rights are hereby expressly reserved.

Yours faithfully,

[Signed]

Peter Mo & Co.”

7.This prompted the Defendant’s solicitors to write on 1 April 2005 as follows: 

“Dear Sirs,

Re: High Court Probate Action No. 18 of 2003

We refer to your letter dated 29^th March 2005.

The sole purpose of the DNA test is to determine the truthfulness of your clients’ allegation that our client is not the natural daughter of the late Mr. Cheng Fong.  As we have clearly stated in our letter dated 24^th March 2005, our client will make the concession that she is not a natural daughter of the late Mr. Cheng.  In the circumstances, there is absolutely no need to conduct the DNA test and hence the exercise to obtain sample of the remains and ashes of the late Mr. Cheng and late Madam Yuen Wong, regardless of whether our client’s admission is unconditional or not.

In any event, there is no urgency in this matter and we fail to see any justification for your clients to rush the DNA test when they are well aware of the aforesaid concession of our client.

We are instructed to inform that should your clients insist on causing unnecessary disturbance to the remains of the late Mr. and Mrs Cheng, our client will have no alternative but to defend and seek recourse against the unreasonable action of your clients.

Meanwhile, all our client’s rights and remedies are hereby reserved.

Yours faithfully,

[Signed]

HOBSON & MA”

8.On 13 April 2005, the Plaintiffs’ solicitors wrote to the Defendant’s solicitors.  Amongst other things, they asked for a draft of the proposed re-amended defence.  

9.On 11 May 2005, the Defendant’s solicitors replied as follows:

“Dear Sirs,

Re: High Court Probate Action No. 18 of 2003

We refer to your letter dated 6^th May 2005.

With respect, we are of the opinion that your request that our client should deposit the estate of the late Mr. Cheng Fong (“the Estate”) to the court is unclear and ambiguous.  The Letters of Administration in respect of the Estate were granted to our client on 3^rd May 2000.  Throughout these years, the Estate has been duly administered and/or disposed of.  In the circumstances, we shall be grateful if you will confirm whether your request is confined to the unadministered part of the Estate.

In any event, we are instructed to stress that notwithstanding the proposed change of the capacity of our client for the sole purpose of these proceedings, our client has a strong case to prove that she is a lawfully adopted daughter of the late Mr Cheng, hence a child or issue of the late Mr Cheng for the purpose of the Intestates’ Estates Ordinance.  It follows that our client is perfectly entitled to the Estate and there would be no difference in her inheritance to the Estate.

In passing, we enclose herewith a draft Re-amended Defence to be annexed to the draft Consent Summons sent to you by our letter dated 24^th March 2005 for your consideration.  Please let us know whether the draft Consent Summons is acceptable to you.

Yours faithfully,

[Signed]

HOBSON & MA”

10.Enclosed with the letter was a draft re-amended defence.  Amongst other things, paragraph 25A of the original pleading whereby the Defendant pleaded that she is a natural and lawful daughter of the deceased and the deceased’s wife was deleted in the draft.  A new paragraph 5 pleaded as follows:

“5.  The defendant had all along been told by the deceased and Madam Yuen Wong, and verily believed that she was their natural daughter.  However, for the purpose of these proceedings, she is prepared to concede that she is not, in fact, their natural daughter.” 

11.Mr Chong, appearing for the Plaintiffs, together with Miss Wong, argues at this hearing that clear and unambiguous admissions have been made by the Defendant in the correspondence that she is not a natural daughter of the deceased.  As her application for letters of administration was based on the premise that she is a natural daughter of the deceased, the Registry has been deceived or misled and, based on authorities, Mr Chong submits that the grant of letters of administration should be revoked.  In other words, he asks for judgment by admission in terms of paragraph 1 of the prayer for relief in the re-amended statement of claim.

12.Mr Miu, appearing for the Defendant, argues that no admission has been made by the Defendant in the correspondence.  All she has offered in the correspondence that I have reproduced above was a concession and the concession was a conditional one, i.e. that it was conditional upon the Plaintiffs not seeking to obtain the DNA samples from the remains of the deceased and his late wife. 

13.Mr Miu argues that by implication the Defendant was saying in her letters that she is indeed a natural daughter of the deceased.  However, for the purpose of litigation and in order that the remains of her late parents would not be disturbed in case her appeal from my order should fail, she was prepared not to take the point that she is a natural daughter of the deceased.  Mr Miu thus draws a distinction between admission and concession. 

14.Having given the respective arguments of counsel careful thought, I am unable to accept Mr Miu’s argument.  Reading the correspondence as a whole, I have come to the clear conclusion that the Defendant has admitted in the correspondence that she is not a natural daughter of the deceased.  That she made the admission only for the purpose of the present action is neither here nor there, for one is precisely concerned with whether judgment should be entered against her based on her admission for the purpose of this litigation.  Calling what the Defendant has admitted a concession does not help either because a concession may be a factual concession and a concession may take the form of an admission.  In fact, one may call all admissions made by a party in his or her pleading concessions of what has been alleged in his or her opponent’s pleading in respect of which that first-mentioned party is seeking to respond by his or her pleading.

15.Furthermore, in my judgment, the motive behind a party’s admission or concession is quite irrelevant.  Mr Miu suggests in submission that the concession was offered with a view to avoiding the obtaining of DNA samples from the remains of the deceased and his late wife.  That may well have been the case but that does not alter the fact that admissions have been made to the effect that the Defendant is not a natural daughter of the deceased.  An admission can be made for a variety of reasons.  Sometimes it is made because what has been admitted actually represents the truth.  Sometimes an admission is made out of convenience; still at other times, admissions are made for tactical purposes.  The court is not here to be concerned with the motive or purpose behind an admission.  The court is here to see whether a clear and unambiguous admission has been made.  Whether the admission is conditional or unconditional is, as the Defendant’s own solicitors have acknowledged in their letter dated 1 April 2005, quite beside the point in the present context.  What is required is a clear and unambiguous admission and, incidentally, I note that the solicitors of the Defendant recognised and accepted that the Defendant was making an “admission” regarding her own status in that letter. 

16.I accept Mr Chong’s argument in relation to the letter of 1 April 2005 that, by that letter, the Defendant has made it absolutely clear that she was conceding that she is not a natural daughter of the deceased.  That explained her strong stance expressed in her solicitors’ letter that the remains of the deceased and his late wife must not be disturbed for, given her concession, the justification for obtaining DNA samples from the remains of the deceased couple was wholly gone. 

17.I do not accept Mr Miu’s argument that the Defendant’s side was merely making an offer to make a concession in the correspondence, i.e. that in exchange for a promise by the Plaintiff not to obtain the samples from the remains of the deceased couple, the Defendant would no longer insist that she is a natural daughter of the deceased. 

18.In my judgment, reading the correspondence as a whole, the Defendant’s position is very clear.  She was making a concession or admission that she is not a natural daughter of the deceased and, given that stance, the substratum of my order regarding obtaining DNA samples from the deceased couple was gone and, therefore, the Plaintiff must not seek to enforce my order anymore.  

19.That, in my judgment, is a fair reading of the correspondence.  There is no question of the Defendant needing any consent or agreement from the Plaintiffs’ side.  It is true that the Defendant has provided a consent summons as well as a re-amended defence, both in draft form, to the Plaintiffs’ solicitors for their perusal or comment, but that was only for the purpose of saving costs, as I observed during Mr Miu’s submission, which he also accepted.  In fact, the Defendant need not obtain the Plaintiffs’ consent to what she was seeking to do, i.e. to make the admission and to ask the court to stay the execution of the order given by me at the last hearing.  The Defendant could simply come to court, make the concession, ask for leave to amend her pleading, and ask the court to stay the execution of the order previously given.  There could be other ways to achieve the same end.  My point here is that although draft documents have been supplied to the Plaintiffs’ side, it does not mean that what was involved was merely a settlement order. 

20.For all these reasons, I have come to the conclusion that the Defendant has made admissions that she is not a natural daughter of the deceased.

21.Mr Miu has not, in his submission, challenged Mr Chong’s argument that if the Defendant is not a natural daughter of the deceased, the grant of letters of administration should be revoked by the court on the basis that the Probate Registry was led to proceed on a false premise in processing and approving the application for grant.  Authorities have been cited to me to support the proposition that in a situation of the present type, the court should revoke the grant.  Mr Miu has not made any submission to the contrary. 

22.Of course, I have not forgotten that in an application under Order 27, rule 3, the court retains a discretion as to whether to give judgment even if it is of the view that an admission that is clear and unambiguous has been made.  But as has been noted by the editors of Hong Kong Civil Procedure 2004, in volume 1, para. 27/3/6, the court would, in the absence of reasons to the contrary, make the order sought if an admission supporting the grant of judgment has been established so as to save time and costs. 

23.I have considered whether anything will be gained by my revoking the grant at this stage of the proceedings.  There are other issues to be tried.  My revocation of the grant at this stage would mean that there is a vacuum in the administration of the estate of the deceased unless the court should, at the same time, order the appointment of a replacement administrator or an administrator pendente lite, which will more likely be the case. 

24.On the other hand, I bear in mind the controversies and disputes regarding the Defendant’s management of the estate thus far and, in fact, I still have other applications to deal with relating to the Defendant’s management of the estate.  My revocation of the grant at this stage would, hopefully, reduce or minimise those disputes because once the grant is revoked, the Defendant would no longer be responsible for administering the estate and the allegations and complaints against her that are directed to the future would be reduced, if not wholly gone. 

25.For those reasons, and having looked at the matter in the round, I am inclined to granting judgment revoking the grant of letters of administration; but that is subject to one further consideration, i.e. whether the Defendant should be allowed to resile from her admissions.   

26.No formal application has been made by the Defendant to do so.  Mr Miu explains to the Court during his submission that that was because his client’s stance was that she had made no admission and, therefore, there was nothing to be resiled from.  Unfortunately for her, according to my judgment, she was wrong.  Therefore, there is before me no formal application for the withdrawal of admission.  In his written skeleton argument, Mr Miu has, as a fallback position, mentioned the withdrawal of admission if necessary.  That is quite unsatisfactory, leaving aside the fact that there is no formal application before the court.  No affidavit or affirmation has been filed by the Defendant or those representing her to explain why the admissions were made in the first place or why she should want to withdraw her admissions now. 

27.Mr Miu has given me, from the bar table, some explanation for the apparent change of stance.  He essentially said that at a subsequent stage, he and his pupil have had a closer look at the expert report relied on by the other side and have come to the conclusion that the report does not really support the Plaintiffs’ case that the Defendant is not a natural daughter of the deceased.  Implicit in that supposed explanation for the change of stance was that the admissions in the letters were made because, at that time, the Defendant thought that the Plaintiffs had a fairly strong case on the expert evidence and, therefore, she thought it advisable to make the admissions.  But as her counsel and counsel’s pupil have now come to a different view, she would like to change her stance.  That is fair enough by itself but, unfortunately, that explanation, as I noted, given by counsel from the bar table without any supporting affidavit to back it up, does not seem to tally at all with what has been written on behalf of the Defendant in the correspondence.  The clear message in the letters written by the Defendant’s solicitors was that she made the concession because she did not want the remains of the deceased couple to be disturbed which would be the case if her appeal from my order should prove to be unsuccessful.  The solicitors’ letter (of 24 March 2005) lost no time in pointing out that the accuracy and reliability of a DNA test are highly questionable. 

28.Mr Miu accepts in submission that all this did not sit well with his latest explanation for his client’s apparent change of stance.  In an application for withdrawal of an admission, whether made formally or informally, a defendant is in fact seeking an indulgence from the court.  He or she must come clean about the true reasons behind the original admission and the subsequent U-turn in stance.  I am afraid I am not sure if I have been given the reasons or the complete reasons for the apparent change of stance.  In any event, there are insufficient materials before me to support the application.  Furthermore, I must consider the respective prejudices to the parties if I should allow the withdrawal and if I should refuse the application to withdraw. 

29.Having borne everything in mind, including the merits of the case in so far as I can glean from the available materials, and having borne in mind the materials that are placed before me and the wholly unsatisfactory evidence that has been put in by the Defendant’s side to support her informal application for withdrawal of admission, I am unable to find sufficient justification to exercise my discretion to allow withdrawal.  Even if I should allow the informal application to withdraw the admissions to be made and entertain the application on its merits, I would not be prepared to allow it. 

30.For all the above reasons, I accede to the application of the Plaintiffs for judgment by admission.  I will hear the parties as to what consequential directions I should give so as to best safeguard the interests of the estate, given that revocation of the grant is involved here.  I would also hear further from counsel regarding the implications of the judgment that I am granting will have on the remaining applications that are before me. 

31.Subject to what counsel may say, I would give the costs of this particular application to the Plaintiffs. 

Mr K M Chong and Miss Emma Wong, instructed by Peter Mo & Co., for the 1st to 3rd Plaintiffs

Mr Nelson Miu, instructed by Messrs Hobson & Ma, for the Defendant