Re Wu Yee Lai

HCAG 9657/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 9657 OF 2005

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Coram : Before Master Levy in Chambers

Date of Hearing   :   23 March 2010

Date of Decision   :   30 March 2010

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D E C I S I O N

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BACKGROUND

1.The Deceased, a married woman, died intestate in 2003 in Hong Kong leaving assets consisting of bank accounts and real estate in Hong Kong. The Applicant is the lawful and natural son.

2.This application was filed in September 2005. In the Applicant’s Oath, it is averred that the Deceased’s husband was domiciled in Mainland China where the Deceased also died domiciled. It is further averred that the Deceased’s husband had disappeared since 1961.

3.Evidence of foreign law was adduced by an opinion of Mr. H.C. Miu (“the Opinion”).

4.After a long period of inaction, the solicitors in January 2010 filed a Chinese judgment given by a People’s Court in Guaugdong declaring the death of the Deceased’s husband.

5.I directed an appointment hearing to deal with the problems in connection with the following matters:

(1)  Evidence on foreign law;

(2)  The correct form of application; and

(3)  The delay;

(I)  UNSATISFACTORY EVIDENCE ON FOREIGN LAW

6.The Opinion relied on by the Applicant as evidence on foreign law is not satisfactory in these aspects:

(i)  The format

7.Evidence of foreign law should be in the form of an affidavit by a person who is an expert of the law of the country or place outside Hong Kong (see Rule 18, Non-Contentious Probate Rules (Cap.10) (“NCPR”)”.

8.Hence, adducing evidence of foreign law by way of a legal opinion is not an acceptable form of evidence, though the court may sometimes waive such a requirement when circumstances justify.

9.The Opinion does not fulfill the procedural requirement.

(ii)  Irrelevant matters

10.Mr. Miu is a well-known expert in Tsing Law, and generally Chinese law. I have also come across a number of opinions he has written on Tsing Law in non-contentious probate applications.

11.This application is not concerned with succession to land in the New Territories under Tsing Law. However, the expert has devoted substantial part (6 out of a total of 13 paragraphs) of the Opinion in explaining succession to land under the repealed New Territories Ordinance before its repeal in 1994 and the Chinese customary law in Hong Kong. Similar legal exposition has also been found in the expert’s other opinions on matters relating to Tsang Law but I find the said exposition in this case irrelevant, and is unhelpful to me.

(II)  LACK OF A PROPER EX-PARTE APPLICATION

(i)  Entitlement

12.The Deceased died domiciled outside Hong Kong. The Applicant shall be required to obtain an order under Rule 29, NCPR before his application can be further considered.

13.No Rule 29 application has been filed. The Applicant’s application for grant contains no averment that the Applicant has obtained a grant, decree or an order of a court empowering him to collect in and administer the estate. Hence, Rule 29(a) does not apply.

14.The Applicant could make an application under Rule 29(b), if in Mainland (where the Deceased died domiciled) a grant is not necessary to enable administration to be carried out, and that the Applicant is entitled to administer the estate by the law of Mainland China.

15.However the Opinion only deals with the persons entitled to administer the estate without stating whether a grant for administration is necessary by the law of PRC (though it is my understanding that a grant is not necessary in Mainland for the purpose of administration).

16.If the Applicant is not able to pray in aid of Rule 29(a) or Rule 29(b), he may consider making the application under Rule 29(c) for the Registrar to issue a grant to such person as she may think fit[1].

17.The papers filed however do not show which limbs of Rule 29 the application is brought.

(ii)  Mode of application

18.According to Part II of Practice Direction 20.1, an application for an order under Rule 29 should be made ex-parte, which can be filed simultaneously with an application for grant. The procedural steps are set out in Paragraphs 5,6 and 7 of the Practice Direction.

19.In this case, however, the solicitors have only filed the application for grant without filing an ex-parte application for an order under Rule 29.

(III)  EXPLAINED DELAY

20.On 26 September 2005, the first firm of solicitors (“ First Solicitors”) filed the application without filing an ex-parte application as required by Practice Direction 20.1.

21.In October 2005, requisitions were raised regarding Rule 29 ex-parte application and the Applicant’s entitlement.

22.In April, 2006, after a lapse of 6 months, the First Solicitors responded that the ex-parte application would be made in due course without indicating when it would be filed.

23.The application since became inactive.

24.In January 2007, a Notice of Change of Solicitors was filed by a second firm of solicitors (“Second Solicitors”).

25.Nothing was done by the Second Solicitors

26.In April 2009, another Notice of Change of Solicitors was filed by the current solicitors (“the Current Solicitors”).

27.However, the inaction continued.

28.In January 2010, this matter then came to my attention when the Current Solicitors filed the Chinese Judgment under a covering letter, seeking the court’s directions.

29.There is however no explanation of any kind for the delay. Neither have the requisitions first raised in October 1995 been complied with.

THE APPOINTMENT HEARING

30.The hearing was attended by Miss Chan.

Re: Evidence of Foreign Law

31.Miss Chan told me that the firm has already instructed a practicing PRC lawyer to deal with the issues required by Rule 29(b).

Re: Procedure

32.She said that an ex-parte application under Rule 29(b) will be filed, and the new expert will deal with the requirements under the rule.

Re: Delay

33.As Miss Chan only became involved in the case recently, she was unable to give an explanation for the delay.

34.She further informed me that her principal, Mr. Tai, was the handling solicitor since 2007 when the latter was the solicitor of the Second Solicitors. When Mr. Tai left the Second Solicitors to join the Current Solicitors, he took the case with him.

Directions

35.Miss Chan conceded that the Current Solicitors have not dealt with the application with due expedition. She asked for leave to withdraw the application so that a proper ex-parte application together with a fresh application can be filed. She also informed me that the Current Solicitors would not charge the Applicant any costs in relation to the present application as well as the costs of the appointment hearing.

36.As the Current Solicitors have agreed to waive their costs, I granted leave to Miss Chan to withdraw the application without requiring the handling solicitor who might have caused the delay to give an explanation. In order to save the Applicant’s time and costs, I further granted permission for the transfer of the original documents to the new application (should the Applicant make the fresh application) after photocopies are made and retained in the file.

PROCEDURAL MATTERS

37.In light of the matters discussed above, I wish to make a few observations:

EVIDENCE OF FOREIGN LAW

38.Evidence of foreign law is an issue of fact and must be proved (as required by Rule 18, NCPR) by a suitably qualified expert by way of affidavit evidence rather than by way of a legal opinion or a letter.

39.The person engaged should state in the affidavit his knowledge or experience in the area of law, which he is asked to give expert evidence. Generally, a lawyer with less than 5 years experience should rarely be accepted as suitably qualified to give expert evidence.

40.In selecting a qualified expert, a solicitor shall ensure that the person to be engaged should – apart from possessing the necessary knowledge and experience – be current with the law he is asked to give evidence. No matter how experienced an expert might be, should he fail to keep abreast with the current law, he would unlikely be qualified to give evidence.

41.The solicitor should further ensure that all relevant matters are to be included in the affidavit. Apart from giving clear and concise instructions to the expert, the solicitor should scrutinize the evidence to be given – by, ideally perhaps, discussing the draft affidavit with the expert before execution- so that all essential matters will be dealt with in the affidavit.

APPROPRIATE MODE OF APPLICATION FOR DECEASED DIED DOMICILED OUTSIDE HONG KONG

42.Whenever a deceased died domiciled outside Hong Kong (and if it is not for re-sealing of a foreign grant), the practice set out in Practice Direction 20.1, Part II should be followed.

43.The ex-parte application should be in the appropriate Forms F2.1, F3.1 or F.4.1 as the case may be as Specified by the Registrar pursuant to Rule 2A, NCPR published in the government Gazette, S.S. No. 4 to Gazette No.4/2006 (these Forms are thus commonly referred to as Specified Forms)

44.The application for grant, which can be lodged at the same time with the Rule 29 application, should likewise follow the appropriate Specified Forms.

45.As in the instant case, there were a number of applications (in respect of deceased died outside Hong Kong) having been filed in the Probate Registry without first obtaining a Rule 29 order. The probate practice in England (as explained in Tristram & Coote’s Probate Practice (30th edition) at paras.12.127 to 12.130) actually requires its equivalent Hong Kong Rule 29 application to be lodged first, and an order be obtained before an application for grant can be filed. It is only in straightforward applications that the two applications can be filed simultaneously.

46.Hence, I must emphasize the procedural requirement of lodging the Rule 29 ex- parte application before - if which is not lodged simultaneously with - the application for grant. By allowing the two applications to be filed together, Practice Direction 20.1 is designed to reduce the trouble and expense of two filings. It should not however be read as permitting a reversal of the order of the two applications. Thus, an application for grant filed without a Rule 29 application is procedurally wrong, and would not be allowed.

DELAY

47.Requisitions are to be answered promptly.

48.All applications should be dealt with expeditiously. Delays would not only cause unnecessary anguish and hardship to the persons entitled to a deceased’s estate, they may sometimes further complicate an application for grant if when an applicant dies during the pendency of the application, which necessitates the filing of a new application by a person of a different capacity.

49.Therefore, in exercise of his case management power in ensuring expeditious disposal of an application, a Probate Master may dismiss an application, and require a fresh one to be filed if a case has been delayed without justification.

Ms. B. Chan of Messrs. S.W. Tai & Co. for Applicant.