Lily Cheung v. The Official Solicitor and Another

HCMP 635/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 635 OF 2006

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BETWEEN

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Coram : Before Master J. Wong in Chambers

Date of Hearing: 29 February and 10 March 2008

Date of Decision: 7 April 2008

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D E C I S I O N

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Application

1.This is an application for striking out.

Background

2.Madam Luk Kim Ying (“Madam Luk”) was a mental patient.  Her adopted daughter Ms. Luk Tung Mei (“the 2^nd Defendant”) was appointed guardian of Madam Luk on 23 October 2001.

3.The 2^nd Defendant resigned however on 13 October 2003.  The Director of Social Welfare took up the job and commenced HCA 2498/2004 against the brother of 2^nd Defendant to set aside certain conveyance transactions executed by Madam Luk in 2003, upon, inter alia, the ground that she had no mental capacity to do so.

4.From 5 November 2004, 1^st Defendant herein was appointed the Committee of the property of Madam Luk until she died on 15 March 2006.

5.On 29 March 2006, the present proceedings were commenced.  The Plaintiff said that she was also the adopted daughter of Madam Luk.  The adoption was informal and customary.  She sought, inter alia, to be appointed as administrator of Madam Luk’s estate.

6.The Plaintiff further sought various injunctive relieves against the 2^nd Defendant relating to the funeral and estate of Madam Luk.  These matters were eventually disposed of by consent of the parties.  Since then, it appears that, apart from amending the originating summons in June 2006, the Plaintiff has not taken further step to prosecute the proceedings.

7.In the meantime, 2 applications were filed with the Probate Registry to apply for the letter of administrations to deal with the estate of Madam Luk.  Particulars are as follows.

Application No.	Applicant	Claimed Capacity
HCAG004655/07	Cheung Wai Kwok	Lawful husband
HCAG012391/07	The 1st Defendant	Lawful adopted daughter

These applications have been held in abeyance.

8.On 19 September 2007, the 1^st Defendant issued the present summons asking to strike out the Plaintiff’s claim against her.

9.I heard the substantive argument on 29 February and 10 March 2008.  Mr. Stewart Wong of Counsel represented the 1^st Defendant.  Mr. Harry Liu of Counsel acted for the Plaintiff.  The 2^nd Defendant consented to the 1^st Defendant’s application and as such did not appear at the hearing.  Having heard from the parties, I reserved my decision to be handed down.  I now do so.

Ruling

10.Upon consideration of the evidence, authorities and submissions from the parties, I have decided to allow the 1^st Defendant’s application.  My reasons appear in below.

Locus?

11.It is not disputed that the Plaintiff has not obtained the letters of administration to Madam Luk’s estate.  Without the grant, she has no capacity as an administrator to seek redress for the estate.  Her claim based upon such capacity is therefore liable to be struck out.

12.Could the Plaintiff then rely on her interest, if proved, in the estate to commence the claim?  In this respect, both Counsel had quite a dispute over the authority of Ip Cheung-kwok v Sin Hua Bank Trustee Ltd [1990] 1 HKLR 497.  Nonetheless, in my view, I need not decide on the dispute between them.  It suffices for me to refer to another recent Court of Appeal decision.  In the Judgment dated 3 March 2006 in CACV 34/2005, the Court struck out the proceedings therein relying on Ip Cheung-kwok.  Yuen JA said that:

“35.    代表徐玉蓉的莊廣燦大律師（原審時未有代表她）向本庭力稱周順鏞沒有訴訟資格，因為他只是遺產的受益人，而並非是遺產代理人，所以他沒有就遺產內的資產有任何業權。身份只為受益人的他，只是有權要求遺產代理人維護他的利益。他不能以個人身份展開訴訟以索取遺產內的資產。在葉長國對新華銀行信托人有限公司 [1990] 1 HKLR 497一案，上訴法庭裁定（第509E頁）：

“Thus in a wide or popular sense the plaintiff (assuming his claim to be the sole beneficiary to the unadminstered estate of the [deceased] to be established) may be said to have an interest in the assets comprising that estate, but that interest is protected, not by conferring upon him any legal or beneficial interest but a chose in action enabling him to obtain the protection of the court to ensure the due administration of the assets in the estate by the [deceased]’s personal representatives”.

（譯文）

“因此以一廣泛及通俗的意義來說，原告人（就算他聲稱他是死者的未受管理的遺產的唯一受益人這聲稱被確立）可以說是對那遺產內的資產享有權益，但該權益的保障，並不是由任何法定權益或衡平法上的權益賦予他，而是他有一個據法權產（chose in action）令他可以得到法庭保護，確保遺產的代理人會妥善地管理遺產”。

上訴法庭裁定，如果該案的原告人沒有首先根據第15號命令第5條規則獲得命令代表死者的遺產，繼而沒有獲得“訴訟待決期間遺產管理人的委任”（appointment of administrator pendente lite），那麼法庭並不會給他任何濟助，因為他會只是以他個人身份申索遺產內的資產（第511及523頁）。該裁決對本庭有約束力。

36.   張法官在原審時沒有考慮這案例，很可能是因為徐玉蓉當時的代表大律師沒有提出訴訟資格這一爭議點。葉長國一案例確立的原則，是受益人（就算是唯一受益人）都不能以個人身份展開訴訟，索取聲稱是遺產的資產。在葉長國案例中（第514頁I），上訴法庭裁定，如果在該些法律程序中，死者的遺產管理人沒有被加入成為訴訟人之一，或適合代表遺產的人沒有被加入成為訴訟人之一，法官應將該訴訟剔除。這正是HCA 1461/2003的情況。

37.    所以，將以上的原則應用於本案，本席認為徐玉蓉第一項上訴理由成立，而周順鏞的申索應因他欠缺訴訟資格而被剔除。”

13.Hence, in short, Ip Cheung-kwok does not assist the Plaintiff at all.  The proceedings herein, commenced by the Plaintiff as a possible beneficiary of an estate in her own personal capacity, are still irregular and liable to be struck out.

14.In Ip Cheung-kwok, facing an application for striking out, the plaintiff applied under Order 15 rule 5 RHC to put right his case.  Subsequently, he was further appointed administrator pending suit.  Hence, his case was rescued.

Stay?

15.In the present case, upon the application for striking out, the Plaintiff herein has not adopted similar procedures of the Plaintiff in Ip Cheung-kwok to attempt to save her case.  Instead, apart from arguing that she did have the locus, she further asked, as on alternative, this Court to stay the proceedings against the 1^st Defendant.  Mr. Liu relied primarily on Order 20 rule 5(1) RHC and Doris Yue Ling Chi v Yu Iein Shui & Others, unreported, HCA 5643/1991, 25 September 1993; [1993] HKLY 535.

16.I agree that this Court does have the necessary jurisdiction, if he deems fit, to stay the proceedings to allow the Plaintiff to put her case in order.  However, should I do that in the circumstances?  Upon thought, I decline to do so in the circumstances.

(a)       The 1^st Defendant raised the question of locus by correspondence.  Failing any agreement, she then took out the striking application on 19 September 2007.  Nonetheless, it appears to me that the Plaintiff has still failed to put right her case.

(b)       The Plaintiff failed me in the locus point.

(c)       Up to the date of the hearing before me, the Plaintiff simply asked me to stay the proceedings.  She did not however inform me what she would be doing.  No plan whatsoever was put forward to show how her case might be put in order.

(d)       Mr. Liu drew my attention to the Amended Originating Summons herein.  He said that the Plaintiff did ask the Court to appoint her as administrator pending suit (section 40 PAO) and/or administrator of the estate of Madam Luk (section 36 PAO).  Such argument is not persuasive because, so far, these applications have not been pursued in any respect.

(e)       During the short adjournment between the 2 hearings before me, the Plaintiff’s solicitor wrote to inform me that the Plaintiff had prepared to commence a Probate Action against the alleged lawful husband of Madam Luk.  How far does it help the Plaintiff to defend for the striking out herein?  I do not consider that it is particularly helpful.  First, I am not too sure if the 2^nd Defendant herein should also be joined therein or informed of such proceedings.  Second, after the commencement of the intended Probate Action, what is going to happen?  Last, but not least, how will it cure the irregularity of the Plaintiff’s capacity in the proceedings herein?

(f)        The facts of Doris Yue is clearly distinguishable from the present one.  In that case, the Plaintiff was the daughter of the deceased and residuary beneficiary of the subject estate.  She sued her brothers for improper transfer of certain shares of the deceased.  The proceedings were irregular because she failed to join the mother administratrix as a party.  The Court therefore stayed the proceedings to allow her to join the mother.  Such irregularity is easily remediable.  Without going too far into the Plaintiff’s case, properly, she will have more hurdles to pass.  Nonetheless, it is certain that this Court should not stay the proceedings when he has no idea as to what will happen in future.

(g)       Mr. Liu further argued that this Court should stay the proceedings to avoid multiplicity of proceedings.  I agree it only as a matter of principle.  However, this Court has to balance the interest of different parties.  The Plaintiff said that she had to commence new action against the 1^st Defendant if she would get the grant eventually.  By then, she might be time-barred if the present proceedings will be struck out.  It may be very true.  However, I have accepted that the present proceedings so far are irregular.  The Plaintiff has not done anything to effectively remedy the same.  This Court does not know her plan.  She is only a potential beneficiary.  Her interest has yet to be established.  I believe that discretion should not be exercised in favour of her in the circumstances.

Concession?

17.Both Counsel also disputed to me as to whether I should rely on a concession or an admission by the Plaintiff towards the striking out application.  When the parties corresponded with each other, on 21 August 2007, the solicitors of the Plaintiff wrote

“… In relation to your summons, and on the basis of not admitting your client’s allegations, we are instructed that our client consents to paragraph 2 of your summons and to pay costs to your client to be taxed if not agreed as our client does not wish to incur further costs on this issues.  Our client believes this would save unnecessary costs for arguments and not to waste the court time to adjudicate on the narrow issues …”

18.In relation to this, I take the view that:

(a)    I do not and indeed need not rely on the Plaintiff’s concession to strike out her claim against the 1^st Defendant.

(b)    If I had to make a decision to rule the admissibility of this letter, I will do so for the Plaintiff because such letter, though not marked with the label of “without prejudice” was, in my view, written for the purpose of settlement, i.e. concession made on the basis of “without admission, to save time and costs”.

Order

19.In the end, I order that the Amended Originating Summons herein dated 19 June 2006 is struck out as against the 1^st Defendant because it discloses no reasonable cause of action.

Costs

20.There appears to be no reason why costs should not follow the event.  I therefore make an order nisi that the Plaintiff shall bear costs of the 1^st Defendant in relation to the proceedings herein as well as the application, including costs reserved and certificate for counsel on the hearings of 29 February 2008 and 10 March 2008, on party-and-party basis, to be taxed if not agreed.

Mr. Harry Liu instructed by Messrs. Charles Wong & Co. for Plaintiff.

Mr. Stewart K.M. Wong instructed by Department of Justice for 1^st Defendant.

2^nd Defendant, represented by Messrs. K.Y. Woo &Co., being absent.