Re Leung Wai Fong
Read the full judgment text of HCAG 5395/2004 on BabelCite. This HCAG judgment was delivered on 13 January 2006.
1. This is the 9th application on the Non-Contentious Probate List. Ms. C. Tsang of Messrs. Susan Liang & Co., solicitor acting for the applicant, told this Court that she was not arguing the “legality” of the requisitions. Instead, she wanted to see if the matter could be pursued in the alternative way suggested by her.
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HCAG 5395/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE APPLICATION FOR GRANT NO. 5395 OF 2004 _________________________
_________________________ Coram : Before Master J. Wong in Chambers Date of Appointment: 13 January 2006 Date of Decision: 14 February 2006 _______________ D E C I S I O N _______________ Application 1.This is the 9th application on the Non-Contentious Probate List. Ms. C. Tsang of Messrs. Susan Liang & Co., solicitor acting for the applicant, told this Court that she was not arguing the “legality” of the requisitions. Instead, she wanted to see if the matter could be pursued in the alternative way suggested by her. Background 2.On 5 November 2003, the Deceased died intestate at Hong Kong Sanatorium Hospital leaving an estate of $279,376.66. 3.On 17 June 2004, the applicant filed his application with the Court for the letters of administration in respect of the Deceased’s estate. He deposed, inter alia, in his first affirmation (1) that:
4.Upon checking (1) against other documents filed, the officer raised various requisitions and eventually, on 11 July 2005, the applicant filed his second affirmation (1A) telling this Court that:
5.Requisition nos. 10 to 12 were raised:
6.Ms. Tsang decided to take up these 3 requisitions with me. To sum up, she submitted that the requisitions could be dispensed with because:
Ruling 7.Now, upon careful consideration of the submission of Ms. Tsang, I have come to the conclusion that:
My reasons appear as follows. Primary facts 8.The legislature asks this Court to ensure that the grant is issued to the proper person under the law. Any facts affecting the right of entitlement by the applicant to the grant is important and of the primary concern of the Registrar. I call them primary facts (主要的事實). They include:
Secondary facts 9.To perform the duty to issue grant to the right person, the Registrar published “Specified Forms” to be completed by the applicant. The forms require facts incidental to the primary facts. I call them secondary facts (次要的事實). They include information relating to:
The secondary facts are usually relevant and useful to determine the primary facts. The Registrar requires the secondary facts because they can help to discharge his duty to make inquiries. Nonetheless, it is also true that sometimes, the secondary facts are relatively less important than the primary facts. Requisition no. 9 10.Bearing the above concepts in mind, I turn to the three requisitions raised by Ms. Tsang. It is now the case of the applicant that:
As such, if they are be accepted, according to rule 21 of the Non-Contentious Probate Rules (Cap.10A)(“NCPR”), Madam Wong as the principle wife is under no circumstances entitled to the grant and/or share in the estate of the Deceased. The death of Madam Wong does not therefore affect the application. The only relevance of her death is perhaps: whether she can act as a witness in confirming the concubinage of Mr. Kwong Ting and the Deceased. 11.The applicant is now confirming on oath with this Court that Madam Wong died on 27 February 2000 in the States, and a copy of the death certificate was also filed. In my view, the evidence having been filed suffices for the purpose of establishing a secondary fact. Requisition no. 10 12.The concubinage between the Deceased and Mr. Kwong Ting shall be proved to the satisfaction of the Registrar on balance of probabilities. Such relationship affects the description of the applicant (lawful and natural son or just natural son?) and therefore his entitlement and priority to the grant. 13.There is no doubt that the Registrar is entitled to ask for something more than the “facts” stated in the affirmation. Rule 5(2) NCPR states that:
14.I can understand the argument of Ms. Tsang: the applicant is entitled to the grant whether the Deceased is her natural mother or her natural and lawful mother. Upon thoughts, bearing in mind the inquisitional jurisdiction of the Probate Registry, I do not consider I can accept such “alternative plea” i.e. “I am either the lawful and natural son or just the natural son of the Deceased. I cannot be too sure, but please let me have the grant.” Factually, the Registrar must be satisfied one way or the other. The applicant’s case is now appearing in (1A), corresponding evidence shall be adduced to satisfy the same. 15.Ms. Tsang further submitted that it was difficult, if not impossible, for her to locate available witness to prove the concubinage as it was something happened in 1956. In this respect, there was no “competent” witness. I take a different view from that of her. In the context of non-contentious probate matters, “competency” of witness means nothing more than “the best available evidence rule”. When the applicant has to rely on affidavit evidence, a simple order of “preference” may be described as:
Further, a witness with direct knowledge, rather than hearsay, is preferred, and a witness of majority is also better than a minor. 16.In my view, strictly speaking, there is no “incompetent” witness in the sense that it is really a matter of the “weight” of the evidence to be attached by this Court. 17.Applying such analysis to our case, witnesses as per paragraph 15(a) and (b) might not be available. Madam Wong cannot help us because she was dead. However, probably, the children born by Mr. Kwong Ting and Madam Wong should be able to assist. They belong to category 15(c) above. Further, assuming Mr. Kwong Ting did take the Deceased as concubine in 1956, 5 out of the 6 children born by Mr. Kwong and Madam Wong would be of age by that time. One of them should be able to depose to the validity of concubinage. Requisition no. 11 18.The nature of non-contentious application for grant, unlike the adversarial proceedings wherein there is an “opponent”, is equivalent to an ex-parte proceedings, i.e. the applicant applies on his own to the Court for a grant to administer the estate of the deceased. Hence, no doubt, the applicant must make full and frank disclosure to the court of all material matters within his knowledge. He shall never mislead the Court. 19.(1) is substantially different from (1A). It is therefore reasonable to ask for an explanation. I will be leaving the matter in the good hands of Ms. Tang to deal with the matter as per requisition no. 11.
Ms. C. Tsang of Messrs. Susan Liang & Co. for the Applicant |
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