Wong Wai Kit Kenneth v. Wong Mei May Mimi

HCAP 15/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. HCAP15 OF 2006

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BETWEEN

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Coram:   Master J. Wong in Chambers

Date of Hearing:   9 November 2007

Date of Decision:   29 November 2007

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D E C I S I O N

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Application

1.The Defendant applies for an order from this Court to direct the Plaintiff to withdraw his Interrogatories.

Background

2.Mr. Wong Chirk Kwan (“the Deceased”) died testate on 4 February 2006 leaving a Will (“the Will”) dated 27 November 2003.  The Plaintiff and the Defendant are the only beneficiaries under the Will.  They are nephew and aunt.  By the Will, the Deceased gave 2 specific gifts to the Plaintiff, namely (1) Flat D, 5th Floor of Sun Tao Building (“the Property”) and (2) monies kept in HSBC Bank Australia Limited.  Then, all other estate, including shares in Asia Cold Storage Company Limited (“the Company”) are to be distributed by the Plaintiff and the Defendant equally.

3.By the proceedings herein, the Plaintiff mainly complained the followings.

(a)       Special dividends issued by the Company before the death of the Deceased in the sum of $1,241,920 were not included as part of the estate of the Deceased.

(b)       By misrepresentation and undue influence, the Property was wrongfully conveyed to the Defendant by the Deceased at an undervalued price of  $250,000 only.

4.The Defendant defended for the proceedings.  She averred that the Deceased gave her 1m out of the said sum of $1,241,920 as a gift.  Regarding the Property, she was a bone fide purchaser for value.  Further, when the Deceased executed the assignment, a doctor certified that he was mentally sound and fit.

5.The parties have moved into the stage of discovery.  The Plaintiff filed his list on 2 April 2007.  The Defendant also did so, albeit a bit late on 20 June 2007.  In the meantime, on 23 February 2007, the Plaintiff issued a summons for inspection of documents for those relating to the Special Dividends.  Although the Plaintiff later abandoned the summons, the Defendant had filed an affidavit on 17 March 2007 to defend for the same.  It was mentioned therein:

“I also wish to point out that as the sum of HK$1,000,000.00, being part of the “Special Dividends” (using the plaintiff’s choice of words) was a gift from my deceased father to me, it could not, and should not be included, as part of his estate and hence, it must follow that as the Plaintiff pointed out in paragraph 6 of the Plaintiff’s affidavit, it was not shown on the Certificate of Exemption from Estate Duty, a document which does not assist the Plaintiff at all.”

6.The above allegation then triggered the present Interrogatories.  Five questions were put forward.

“1)        Please state whether the Defendant, the said Wong Mei May Mimi has ever submitted any Gift Account to the Commissioner of Estate Duty.

2)        If the answer to the above Interrogatory No.1 is in the affirmative, please state and confirm whether the said Gifts Account has been included and incorporated in the Affirmation to the Commissioner under the Form ED1 (Affidavit for the Commissioner) which has been affirmed by the Defendant.

3)        If the answer to the above Interrogatory No.2 is in the affirmative, please state whether the Defendant has stated and filled in the details to Account 3 (which is the Gift Account) in respect of all gifts effected by the Deceased during the 3 years preceding his death.

4)        If the answer to the above Interrogatory No.3 is in the affirmative, please state whether the Defendant has included and stated on the corresponding Questionnaire, any inter vivos gifts as recorded on the said Account 3, and the said Form ED1 (Affidavit for the Commissioner) to the effect that there had been a gift of HK$1,000,000.00 made by the Deceased to the Defendant.

5)        Please state and confirm that the Defendant had affirmed or otherwise under oath the said Form ED1 (Affidavit for the Commissioner) to the effect that all the contents thereof were true to the best of the knowledge and belief of the Defendant, and whether the said form ED1 (Affidavit for the Commissioner) was affirmed by the Defendant before a Commissioner for oaths.”

7.The Defendant refused to comply with the Interrogatories and issued the present application.  I heard the substantive argument on 9 November 2007.  Mr. Lawrence Hui of Counsel acted for the Defendant and Mr. Herbert Leung of Counsel represented the Plaintiff.  Having heard from both Counsel, I reserved my decision to be handed down.  I now do so.

Ruling

8.Upon consideration of all the evidence authorities and submissions by the parties, I have decided to allow the Defendant’s application.  My reasons appear in below.

(a)       By interrogatories, a person is obliged to answer the existence of some fact within his knowledge and relevant to a dispute.  The general principles can be found at paragraphs 26/4/6 to 26/4/15 of the White book 2007.

(b)       One of the principles states that the interrogatories must not be effectively asking for documents or discovery.  With respect, it is exactly what the Plaintiff is doing by the Interrogatories.  It is the Plaintiff’s case that, for the purpose of clearing the estate duty office, the Defendant filed an affidavit (“Form ED1”) and his stance towards the $1m Gift should be stated therein.  Hence, the 5 Interrogatories were administered.  However, the answers to these interrogatories are apparent from the Form ED1 itself.  In the circumstances, the Interrogatories are effectively asking for specific discovery of the document.

(c)       The Plaintiff further fails this Court because I am not satisfied that the Interrogatories is necessary either for disposing fairly of the cause or for saving costs.  By the Interrogatories, a simple dispute of discovery on a single document has transformed to five questions.  Further, some of the questions went to cross-examine the Defendant’s stance taken in the Form ED1.  In my opinion, these matters go to the credibility of the Defendant and should be put to her at trial only.

(d)       It is not disputed that this Court retains an overriding discretion in the matter in any event.  If I should exercise my discretion in this application, Mr. Leung has not been able to persuade me to do so in favour of the Plaintiff.  It is a dispute between 2 beneficiaries as to the scope of the estate.  Are the conveyance of the Property an arm’s length transaction and the transfer $1m, a gift?  An order for interrogatories relate to the Gift issue only.  Even if I will order the Defendant to answer the questions, they are not decisive to the dispute.  Although the declaration by the Defendant in relation to the $1m might have some bearings on the Gift issue, it really boils down to a question to be decided by the trial judge upon considering all evidence before him, including Form ED1 and the explanation by the Defendant, if any and applicable, as to how and why she stated so in the document.

Costs

9.I further make an order nisi that the Plaintiff shall bear the costs of the Defendant in relation to the application, including costs reserved on 13 June 2007 and Certificate of Counsel on 9 November 2007, on party-and-party basis, to be taxed if not agreed, in any event.

Mr. Herbert Y.F. Leung instructed by Messrs. Kelvin Cheung & Co. for Plaintiff.

Mr. Lawrence C.L. Hui instructed by Messrs. Herman H.M. Hui & Co. for Defendant.