Re Lau Kam Sing

HCEA 126/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

EX-PARTE APPLICATION NO. 126 OF 2005

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BETWEEN

HCEA 128/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

EX-PARTE APPLICATION NO. 128 OF 2005

BETWEEN

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Coram :   Master J. Wong in Chambers

Date of Hearing  :   8 October 2005

Date of Handing Down Decision  :     27 October 2005

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D E C I S I O N

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Applications

1.There are two applications by Madam Tang Yuen Mei (the “Applicant”) under section 36 of the Probate and Administration Ordinance (Cap.10)(“PAO”) and rule 31(3) of the Non-Contentions Probate Rules (Cap.10A) (“NCPR”) for an appointment of person(s) that this court thinks fit to be the administrator(s) of the estate (“the Estate”) of Mr. Lau Kam Sing and his wife Madam So Siu Fun (“the Deceased Couple”).

Background

2.On 23 October 2004, the Deceased Couple met with a car accident in Hangzhou, China.  They died intestate leaving a minor son (“the Son”) who being the only person entitled to the Estate.

3.By a court order dated 15 December 2004 in FCMP 172/2004, the Applicant and Madam So Kiu Fan (“Madam So”) were appointed joint guardians of the Son.

4.I am given to understand that Madam So is intending to apply for the grant of the Estate.  For the time being, she lodged two caveats against the Estate on 5 October 2005 under HCCA 2308 and 2309, both of 2005.

5.On 27 September 2005, the Applicant lodged the present applications and subsequently appeared before me on 8 October 2005 by Ms. V. Chiu of Counsel, instructed by Messrs Angus Tse, Yuen & To.  Upon hearing from Ms. Chiu, I reserved my decision to be delivered at a later date.

Ruling

6.Now, having considered all the evidence authorities and submission before me, I do not consider that I can grant the orders sought by the applicant for the time being.  My reasons appear in below.

Reasons

7.First, in my view, as a matter of procedure, the applications should not be made ex-parte without reference to other interested or affected persons.  Section 36 PAO states that:

“          Where a person dies wholly intestate as to his estate or leaving a will affecting estate but without having appointed an executor thereof willing and competent to take probate, or where the executor is, at the time of the death of such person, resident out of Hong Kong, or 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 or of any part of such estate, 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, on his giving such security, if any, as may be required under this Part or as the court may direct, and every such administration may be limited in such manner as the court thinks fit.”

The main thrust of the provision is to allow this Court to appoint somebody to administer the estate in suitable circumstances, bypassing others who would by law have been entitled to a grant of such estate.  As such, Madam So should have been informed.  So does the next of kin of the Son.  Finally, as the son will reach the age of majority at 18 on 8 November 2005, probably, he ought to have been notified of the present applications.

8.Second, even if this Court is minded to appoint someone to administer the estate at this stage, the questions remain to be:

(a)       Who should be appointed?

(b)       Is or are the candidate(s) fit, proper and willing to take up the job?

(c)       In case that a professional administrator will be appointed, what are his fees?

I do not think that the Applicant has equipped herself with answers to the above questions.  These matters cannot be left in open to be decided by this Court without evidence.

9.Third, with respect, I also fail to see how rule 31(3) NCPR could assist the Applicant.  The rule states that:

“(3) Notwithstanding anything in this rule, administration for the use and benefit of the person under the age of 21 years until he attains that age may be granted to any person assigned as guardian by order of the Registrar in default of, or jointly with, or to the exclusion of, any such person as is mentioned in paragraph (1) of this rule; and such an order may be made on application by the intended guardian, who shall file an affidavit in support of the application and, if required by the Registrar, an affidavit of fitness sworn by a responsible person.”

The Applicant herself is one of the appointed guardians of the Son.  As a matter of usual course, the 2 guardians would be the applicants for the grant of the Estate.  I do not consider it is necessary or appropriate for the Probate Court to appoint any further guardian in the circumstances.

10.Finally, the main gist of the Applicant’s case are that Madam So is not a suitable person to administer the estate for a number of reasons and that, there are serious doubts as the abilities and impartiality of the persons trusted by the Son to administer the estate.  However, it suffices for me to say, at this juncture, that these matters could not be resolved at the present stage and must only be decided upon having heard from all the relevant parties.

Conclusion and Costs

11.In the circumstances, the applications are declined.  Since these are only ex-parte applications, I will further direct that there be no order as to costs.

Further Directions?

12.At the end of Ms. Chiu’s submissions, she invited me to give directions as to the further conduct of the matters in case that I would not be with her on the applications.  Upon thoughts, I do not consider that it is appropriate for this Court to say anything further at the moment.  As rightly pointed out by Ms. Chiu, the matter may turn out to be contentious and as such, the better option is for the parties concerned to look to their own independent legal advisers to decide how the matter should be proceeded with.  Hopefully, the parties could be able to achieve an amicable settlement of their dispute.

Ms. V. Chiu instructed by Messrs. Angus Tse, Yuen & To for Applicant.