Re Yuen Kiu Kwan

HCAG4920/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

Application for Grant No. 4920 of 2008

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Before:  Hon Lam J in Chambers

Date of Hearing:  6 October 2008

Date of Judgment:  6 October 2008

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J U D G M E N T

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1.This is an appeal from a decision of the Deputy Registrar concerning the provision of surety guarantee for the purpose of granting letter of administration.

2.In the summons taken out by the Applicant, who is applying for probate to be granted in respect of the estate of the late Yuen Kiu-kwan, it was said to be an appeal against the order of the Deputy Registrar on 16 September 2008.  It has now been confirmed and clarified that the appeal is indeed against her decision made on 26 August 2008.

3.In a letter dated 26 August 2008, the Deputy Registrar gave the following direction (the decision was made on 25 August 2008 ) “Having considered the correspondence exchanged between the solicitors for the Applicant and those for Madam Lo, I require surety guarantee should be provided for.”

4.I do not need to go into the details of the matter.  Madam Lo is a person who might have an interest in the estate in terms of claim for maintenance.  The deceased had been, according to her, cohabiting with her for some time before his death.  She was also a business partner of the deceased, and a shareholder and director together with the deceased in a number of companies.

5.The Applicant is a lawful and natural son of the deceased, and he has two siblings.

6.The deceased was divorced, and he died intestate.

7.The Applicant has the consent of his two siblings that as far as surety of guarantee is concerned, they can be dispensed with.  The Applicant said they were the only persons interested in the estate.

8.Madam Lo said otherwise.  She said she might have a claim.  There are allegations against Madam Lo as to intermeddling, and to protect the estate, application has also been made for a granted colligenda bona.  But this is no longer necessary because the Registry has indicated that the Probate Registrar is prepared to make a full grant in favour of the Applicant subject to the question of surety guarantee.

9.The reason why surety guarantee was required by the Deputy Registrar appeared to be the fact that the Applicant is resident outside Hong Kong.  Under Rule 38 of the Non-Contentious Probate Rules, subparagraph (1) provides for the possibility of the requirement of surety guarantee in that sort of circumstance.  Rule 38 has to be read together with section 46 of the Probate and Administration Ordinance.  The Ordinance clearly provides that it is a matter of discretion because it says as a condition of granting administration to any person, the court may require one or more sureties to guarantee.

10.Since the decision of the Registrar, further information has been placed before the court concerning an estimate with regard to the value of the estate in the affidavit of the Applicant of 29 September.  The total value of the estate is estimated to be HK$26 million-odd, consisting of cash, shares in private companies, listed shares, household goods, vehicle and lands and buildings.  The lands and buildings are properties in Hong Kong, and in an affidavit of the solicitor acting for the Applicant dated 2 October 2008, she set out, inter alia, some practical difficulties that would be encountered by the Applicant if surety is required.

11.It was also pointed out that the requirement of surety will mean that the Applicant has to pay a premium to secure that, and from the information available, based on the estimated value of the estate, the premium payable would be around HK$800,000 to HK$1.3 million which would be irrecoverable in any event.  That would be a liability which might eventually be transferred to the estate.

12.The Applicant also has practical difficulties in terms of finding the necessary fund to pay such premium.  The Applicant has indicated he and his wife together have cash available in terms of about 100,000 Singaporean dollars.

13.At today’s hearing, Mr Ng indicated to this court that the Applicant is willing to give an undertaking to the court that he can pay the 100,000 Singaporean dollars into court as guarantee for the due performance of his duty in the administration of the estate, and that means the sum of 100,000 Singaporean dollars can provide some form of guarantee to other persons who might be interested in the administration of the estate from which they can have redress in case of loss caused to them by reason of breach of the Applicant in terms of his duties in the administration of the estate.

14.In those circumstances, subject to a point on which I think I need to have clarification from Mr Ng later on, bearing in mind what the materials before me reveal as to the possible interest Madam Lo might have in respect of the estate, I am of the view that, having now taken into account materials which were not before the Deputy Registrar, this court can accept that undertaking from the Applicant as sufficient guarantee. Therefore there is no need to exercise the discretion under section 46 of the Ordinance to impose conditions with regard to surety guarantee.

15.Therefore, subject to the clarification with Mr Ng, I am prepared to set aside the decision of the Deputy Registrar on 26 August 2008, and direct that no surety guarantee is required in the light of the undertaking by the Applicant.

16.The undertaking by the Applicant is that the sum of 100,000 Singaporean dollars will be paid into court within 14 days.

(Discussion re undertaking)

17.So there will be an order as indicated.

Mr Kenneth W H Ng, of Messrs Barlow, Lyde & Gilbert, for the Applicant