Cheung Wing Lan v. Kwok Chung Chee

HCAP9/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 9 OF 2009

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BETWEEN

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Before :     Recorder R. Yuen, SC in Chambers

Date of Hearing :     25 September 2009

Date of Decision:     25 September 2009

Date of Handing Down Reasons for Decision :     26 March 2010

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REASONS FOR DECISION

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1.This is the plaintiff’s application, in his capacity as an executor, for an injunction against the defendant. Upon the conclusion of the hearing and with the consent of the defendant to the arrangement proposed in respect of rentals (which will be dealt with below), this court granted an injunction in favour of the plaintiff. The following is a brief summary of the background and the reasons for granting the injunction.

2.Mr Kwok Sze (“the Deceased”) passed away on 27 November 2008. Prior to his death, the Deceased was the owner of Lot No. 472 in Ma Wan, New Territories, on which a 3‑storey village type house (“the Village House”) was erected.

3.The plaintiff is the grandson of the Deceased, whilst the defendant is one of the four children of the Deceased.

4.The Deceased made a will in Chinese on 19 November 2008 (“the Chinese Will”). Under this Chinese Will, the plaintiff was appointed as the sole executor and one of the beneficiaries of the Deceased’s estate. The defendant disputed the validity of the Chinese Will on the ground that the Deceased did not have the requisite mental capacity to make the Chinese Will. For the present purpose, it is not necessary to consider the defendant’s challenge to the Chinese Will. Suffice it to note that the Chinese Will was witnessed by a solicitor and a solicitor’s clerk and that the Deceased’s medical condition was certified by a medical officer of the Princess Margaret Hospital.

5.The focus of the present application is the Village House. The ground floor of the Village House was leased to a Madam Lau in 2006 for a term of 2 years. Before the Deceased passed away, this lease was extended. The plaintiff previously resided on the first floor but he subsequently moved to the second floor. After the plaintiff moved out from the first floor, it was leased to another tenant.

6.In short, the plaintiff’s complaint in this application is that the defendant wrongfully harassed him and the tenants of the Village House, and by so doing the defendant interfered with the assets of the Deceased’s estate. Details of the acts giving rise to the alleged harassment are set out in the affirmation of Cheung Wing Lan filed herein on 21 September 2009. Given the attitude of the defendant to this application (which will be dealt with below), I do not think it is necessary to describe the alleged harassment in detail.

7.Put briefly, it is the plaintiff’s case that letters were sent by the defendant to the plaintiff and to the tenant of the first floor demanding that the rentals be paid to him instead of the plaintiff. After the plaintiff’s solicitors had replied to the defendant’s letters setting out the plaintiff’s stance, the defendant maintained his contention that he was entitled to administer the estate of the Deceased including the ground floor and the first floor of the Village House. Further, the plaintiff alleged that on 17 July 2009 the defendant affixed notices to the metal gate installed at the entrance of the staircase leading to the first and second floor of the Village House together with a letter dated 23 May 2009 issued by the defendant. The notices and the letter asserted that the plaintiff had trespassed the Village House and demanded the plaintiff to vacate the same forthwith. According to the plaintiff, similar events took place on 23 and 30 July 2009 as well as 8 August 2009. In addition, the plaintiff asserted that he received repeated phone calls threatening him not to rent out the ground floor and the first floor of the Village House. In addition, there were other incidents which led to police involvement.

8.The defendant has not filed any evidence in response to the plaintiff’s application. With the consent of the plaintiff’s counsel, the defendant stated his case although he was reminded that he had not filed any evidence in opposition. The defendant confirmed that he understood the nature of the present application and that his key concern was the question of how the rentals derived from the letting of the Village House should be dealt with and monitored. The defendant indicated that provided there be a proper mechanism dealing with the rentals pending the resolution of this action, he would not object to the plaintiff’s application.

9.In view of the defendant’s position, which was a reasonable and constructive one, this court found it appropriate to accede to the plaintiff’s application. On the evidence filed by the plaintiff, this court is satisfied that there is a serious question to be tried. As the sole executor, the plaintiff has duty to protect the assets of the Deceased’s estate including the Village House. In light of the evidence, it is perfectly understandable that the plaintiff took out this application. Instead of pursuing the conduct complained of by the plaintiff, the defendant could and indeed should seek redress through proper legal avenues. Should there be no injunction, there would be a real risk that the defendant would continue with inappropriate or even wrongful acts affecting the tenants or the plaintiff.

10.As regards the rental, the plaintiff agreed to give an undertaking whereby the rentals derived from the Village House would be paid into a separate bank account to be opened by the plaintiff’s solicitors and to provide the defendant with the monthly statements. The defendant was satisfied with this arrangement. This court is also of the view that such an arrangement should be sufficient for the purpose of holding the position and providing adequate protection to the defendant.

11.In the circumstances, I made the Order as per the Draft Order handed up by the plaintiff’s counsel at the hearing, subject to the amendments indicated by this court. The costs of and occasioned by the plaintiff’s application should be the plaintiff’s costs in the cause.

12.It remains for me to thank the plaintiff’s counsel for his assistance.

Mr. K.M. Chong, instructed by Messrs Shea & Co., for the Plaintiff

The Defendant, in person, present