Re Cheung Hung

HCAG 12943/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 12943 OF 2009

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Before: Hon Lam J in Chambers

Date of Hearing: 1 December 2010

Date of Judgment: 15 December 2010

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J U D G M E N T

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1.The Applicants applied for a grant of Letters of Administration (with a will annexed) de bonis non in respect of the estate of Cheung Hung, deceased. Probate was granted on 25 October 2007 to the executrix named in the will of the deceased dated 14 January 2004 [“the Will”]. Unfortunately, the executrix died intestate before completing the administration. The Applicants are the siblings of the executrix. They are also beneficiaries of the estate named in the Will.

2.In the course of the application, the Probate Master raised some requisitions.  The Applicants complied with some of them. The latest round of requisitions [“the Requisitions”] was raised by the Master in a letter of 4 August 2010 from the Probate Registry to the solicitors for the Applicants.  I would summarize the Requisitions as follows,

(a) The Applicants are required to confirm that Huang Yanqiong in a decree absolute produced by the solicitor is the 黄燕瓊 named in the Will;

(b) The Applicants shall explain why Sze and Nicholas were included as beneficiaries;

(c) The above shall be set out in a supplemental affirmation.

3.The Applicants’ solicitor Mr Lau did not agree with the Requisitions.  The Applicants therefore took out a summons on 8 October 2010 seeking an order from this court to set aside the Requisitions. It is an appeal pursuant to Rule 62(1) of the Non-Contentious Probate Rules [“NCPR”] Cap. 10A.

4.In his submissions, Mr Lau essentially made two general objections to the Requisitions,     

(a) The Probate Registry has no jurisdiction to raise requisitions in respect of matters relevant only to distribution of estate as opposed to matters relevant to grant;

(b) By virtue of the distinction between a grant in common form and one in solemn form, the standard of proof in non-contentious business should be lower.  In non-contentious business, the court should accept prima facie evidence without requiring any corroborative documentary evidence.

5.Mr Lau also made some specific points regarding each requisition.  I shall discuss those when I deal with each requisition in question.

6.In his written submissions, Mr Lau also made some general remarks about the practice of the Probate Registry and citing some other cases as examples.  Since I am not concerned with those other cases, and I do not find Mr Lau’s references to those other cases to be of any relevance or assistance in the disposal of this appeal, I do not find it necessary to address such remarks.

7.On the jurisdiction of the Probate Registry and the legitimate scope of requisitions, Mr Lau had raised similar challenge in the past in the case of Re Yip Ho (Deceased) HCAG 566 of 2000 (A Cheung J) and [2005] 4 HKC 330 (CA).  In that case, A Cheung J reviewed the relevant statutory provisions and addressed Mr Lau’s submission on jurisdiction at paras. 38 to 40.  The conclusion of A Cheung J was upheld on appeal, see para. 28 of the judgment of Tang JA (as he then was).  A Cheung J accepted that the Registrar could not seek information that is wholly extraneous and irrelevant to the application for grant.  However, His Lordship concluded that the information sought in the specified form is not irrelevant or extraneous to an application for grant (see paras. 39 to 40 of his judgment).  In two earlier paragraphs (paras. 36 and 37), His Lordship explained why the information sought are relevant.  They are relevant to the question of priority for applying for a grant and the suitability of an applicant to act as the administrator.

8.At the hearing on 1 December 2010, Mr Lau took a somewhat nebulous stance.  On the one hand he submitted he would not argue that Re Yip Ho (Deceased) was wrong.  However, he said the propositions set out in the judgment of Yip Ho were bald statements (meaning that no authority was cited in support of them) and as such they were only obiter and not binding.  With respect, Mr Lau was wrong in law.  Under our principle of stare decisis, a judgment of the Court of Appeal is binding on the lower courts notwithstanding that no authority was cited in that judgment.  The only exception is where the judgment can be said to be per incuriam in not following an earlier authority binding on the Court of Appeal or a statutory rule.  Further, so long as a proposition is germane to the decision at hand, it is not an obiter notwithstanding no authority was cited in support of it.  

9.Mr Lau said the Court of Appeal failed to have regard to relevant English authorities on the proper jurisdiction of the probate court.  He cited the following cases: Concha v Concha (1886) 11 App Cas 541; Re Ward [1971] 2 All ER 1249 and In re Berger, dec’d [1990] 1 Ch 118.  I shall explain why I do not regard these authorities as undermining the judgment in Yip Ho.

10.I only need to cite two passages from these judgments.  The first is a succinct summary of the position by Lord Blackburn in Concha v Concha (1886) 11 App Cas 541 at p.562 after referring to section 23 of the Probate Act of 1857 taking away the jurisdiction over suits for distribution from the Court of Probate,

“Sir C Cresswell when deciding, as judge of the Court of Probate, that probate should be granted to the executor of this will, had not to decide, and not only had not to decide but could not then or at any other time decide, what was the construction of that will, or what was its effect for the purpose of giving to legatees, or not giving to legatees. What he did decide was (and to that extent I think the decision was conclusive on everybody), that there was an executor who was entitled to have probate in England for the purpose of getting in and taking the property which was in England, and to that he was entitled if there was a will which made that executor a good executor according to the law of England …”

The issue in that case was whether a decision of the Court of Probate on domicile was a bar to a beneficiary from raising the question of domicile in subsequent proceedings on administration and distribution.  The House of Lords held that it could not be a bar.  Lord Blackburn continued at p. 562-3, referring to the administration of the estate,

“… it is to be administered by ascertaining the domicile and the law of the domicile; but that is to be done by a Court of distribution, which the judge of the Court of Probate was not.”

11.A modern statement of the distinction in the function of the court exercising its probate jurisdiction and one exercising its administration jurisdiction can be found in the judgment of Sir Denys Buckley in In re Berger, dec’d [1990] 1 Ch 118 at p. 133E,

“The function in English law of a probate court is to ascertain and determine what testamentary paper or papers is or are to be regarded as constituting the last will of the testator, and who is entitled to be constituted his legal personal representative.”

Further down the page, at p. 133G to p. 134B,

“… it is important to distinguish between the jurisdiction of a judge … trying a probate action from the jurisdiction of a judge … trying an administration action. The probate jurisdiction extends to the function referred to in the preceding paragraph. A judge exercising that jurisdiction can, of course, receive all evidence and entertain all submissions relevant to the performance of that function. He has, however, no duty to construe any of the instruments sought to be proved except so far as to do so may be necessary for the performance of that function. The probate court has no role to play in the administration of the testator’s estate in accordance with whatever valid testamentary disposition the testator may have made, nor in determining how far his intended dispositions are valid. Once the identity of the deceased’s testamentary papers has been determined and they have been admitted to probate, all questions of construction arising in the administration of the estate concern only the court of administration.”

12.I accept that these cases serve as authorities for the proposition that this court, in the exercise of its probate jurisdiction (and that includes the Probate Registry), should not decide on matter concerning the administration or distribution of the estate.  Those matters should, if necessary, be determined by way of Order 85 administration proceedings.  I have expressed similar sentiment in Re Estate of Lioe Ka Khie [2009] 2 HKLRD 115 at paras. 86 to 88.

13.But it does not follow from this proposition that the Court of Appeal and A Cheung J was wrong in Re Yip Ho (Deceased). As A Cheung J explained, the purpose of seeking the information in the specified form about the beneficiaries is not to facilitate a determination on how the estate is to be administered or distributed.  Rather, they are relevant to the questions of priority and suitability of an applicant.

14.Thus, in the case of an application by an executor named in a will, such information is not sought in the specified form because the court is not concerned with such questions.  In a grant of probate, the court will not usually be concerned about the suitability of an applicant because an executor is appointed by the testator in the will.  However, in the case of appointment of administrator, including administrator de bonis non with a will annexed, the court must consider these questions in the exercise of its discretion under Section 36 of the Probate and Administration Ordinance Cap.10.  Even though the NCPR contains rule as to priority which the probate court will follow generally, it must be borne in mind that under Section 36 the court is directed to appoint such person as the court thinks fit to be the administrator.  Moreover, it is a matter of discretion though the discretion must be exercised judicially.  It follows that no applicant can claim any absolute right to be appointed as administrator.  Notwithstanding the rules as to priority under Rules19 and 21 in the NCPR, if the court has good reason to believe that an applicant is unfit or unsuitable for appointment as an administrator, such person should not be appointed despite his priority over some other claimants.  In such situation, section 36 must prevail over the NCPR. 

15.Having said that, it does not mean that the Probate Registry should embark on a detail investigation of the fitness of an applicant in every case.  In common form  application, usually the fitness of an applicant may be satisfied by his or her oath or affirmation in support of the application.  However, when the material before the court raises grounds for investigation, the court is duty bound to ask for more information in the light of section 36.

16.Thus, there is no inconsistency between Re Yip Ho (Deceased) and the line of authorities cited by Mr Lau.  At the hearing, Mr Lau quite properly accepted that priority and suitability are proper questions to be addressed by the probate court (including the Probate Registry).  He also agreed that an applicant’s refusal to accept someone who is plainly a beneficiary to the estate (e.g. someone named in a will to be a beneficiary in the context of an application for grant of letters of administration with a will annexed) can be taken into account by the court in assessing the suitability of the applicant to be appointed in the exercise of its discretion.  

17.The information sought under the Requisitions relates to the identities of the beneficiaries to the estate.  In the case of 黄燕瓊, she was not included in the list of beneficiaries set out in the Applicants’ affirmation notwithstanding that she was named as one of the beneficiaries in the Will and described as the wife of the Deceased.  In the case of Sze and Nicholas, they were included in the list of beneficiaries in the affirmation but their names did not appear in the Will.  There was no explanation by the Applicants in the affirmation as to why Sze and Nicholas are beneficiaries.   

18.In those circumstances, bearing in mind what was said in Re Yip Ho (Deceased) and my above analysis as to the function of the probate court (and the Probate Registry) and the purpose of the specified forms, I do not think the information sought for the sake of clarifying the above can be regarded as beyond the jurisdiction of the Probate Registry. Indeed, at the hearing on 1 December, Mr Lau also accepted that the Probate Master was entitled to seek such clarifications.

19.Coming to the second general objection of Mr Lau, it is said that the Probate Master should have been satisfied with the answers given by the solicitor in correspondence instead of insisting on having matters set out in an affirmation or affidavit.  Mr Lau asked the court to take into account of the inconvenience and costs to the Applicants in the preparation and making of an affirmation.  One of the Applicants is working in mainland China and he would have to fly back to Hong Kong for that purpose.

20.The mandatory use of the specified form of affirmation has also been considered in Re Yip Ho (Deceased).  In the Court of Appeal, Tang JA said at para. 16,

“We believe that in deciding whether the statutory requirements have been substantially complied with, one is not simply concerned with whether enough of the required information has been supplied, but also the manner of compliance. Thus, if an applicant has supplied all the information required but have re-arranged the paragraphs of the specified form at random, it cannot be said that because all the information have been supplied there has been substantial compliance.”

Then at para. 18,

“We are of the view that compliance is required to be in a manner which is not less satisfactory having regard to the purpose of the legislation in imposing the requirement.”

21.The rationale for the legislative requirement of using the specified form was explained by Tang JA at para. 19,

“The use of standard form facilitates processing as well as understanding by laymen. Obviously it must be in the public interest that grants are made as soon as possible. Reducing time required for processing and misunderstanding must be in the public interest and consistent with the purpose of the rules which are made ‘generally for the better carrying out of the provisions of this Ordinance’, s 72(1) of the Ordinance. There is likely to be delay if applicants are free to modify the specified form as they please.”

22.With these in mind, we can deal with the specific requisitions in this case.  As mentioned, in the Affirmation of the Applicants, there was no explanation by them as to why 黄燕瓊 was omitted and Sze and Nicholas was added into the list of beneficiaries.  The Probate Master raised queries as to these in a letter dated 30 December 2009 (see items (iii) and (iv) of that letter) and asked for evidence setting out the circumstances leading to Sze and Nicholas being put forward as beneficiaries.  The reply of Mr Lau can be found in a letter dated 9 February 2010 and the relevant paragraphs are as follows,

““(iii) 黄燕瓊 divorced the Deceased in the Deceased’s life time and is not entitled to the gift under the will.  As I have repeated time and again, the issue relating the distribution of the estate is not within the jurisdiction of the Probate Court and if any person wishes to dispute his entitlement, he or she should go to the Chancery Court for remedy …”

(iv) Chow Wing Sze and Cheung Nicholas are the grandchildren of the Deceased.  According to the law of prima facie evidence, you have to accept the statement of fact pleaded in paragraph 2 of the Oath.  If you do not believe that the Applicants are telling the truth, please give reason.  In any case and status of the beneficiaries relates to distribution and is outside the jurisdiction of the Probate Court.”

23.As pointed out above, in view of Re Yip Ho (Deceased) Mr Lau’s criticism based on jurisdiction is misconceived. As regards his argument on prima facie evidence, it fails to take into account of Rule 5(1) of the Non-contentious Probate Rules which empower a probate master to make inquiries which he may see fit to make.  Even though there is a distinction between common form probate and solemn form probate, in the processing of the former the Probate Registry is not a mere rubber-stamp.  The Registry has a duty to consider whether the evidence presented by an applicant is sufficient to support a grant to be issued in his favour.  If in doubt, a probate master is duty bound to raise requisition pursuant to Rule 5(1).

24.Further, the queries of the Probate Master should be understood in the light of the background set out at paragraph 17 above.  Thus, it is not a case where the Probate Master raised unnecessary requisitions when everything appears to be in order on the basis of the affirmation and other material placed before the Probate Registry.  

25.There is no prescribed mode in which a requisition must be answered in the NCPR except it was provided under rule 5(1) that the answer has to be “to his satisfaction” viz. to the satisfaction of the Registrar.  Like other discretion vested on other judicial officer, the discretion of the Registrar has to be exercised judicially instead of capriciously or arbitrarily.  It means that the Registrar and the Probate Masters have to pay regard to the significance of the requisitions in assessing what is sufficient to constitute satisfactory answers. 

26.In Re the Estate of Chan Hung Yan HCAG 24 of 2004, 30 June 2004 (in the same judgment as Yip Ho) A Cheung J gave the following guidance at para. 56,

“In my judgment, if the inquiry relates to a piece of information that is required to be supplied under the specified form, and what has been set out in the affirmation or oath is incomplete or incorrect (thus amounting to non-adherence to the specified form), the affirmation or oath must be amended accordingly. In all other cases, the answer may simply be supplied in correspondence.”

27.Further, in the Guide to use the Specified Forms published by the Probate Registry, it was stated at Part IX para. 9.1

“In some applications, the court may require an applicant to furnish more information or material by way of affirmations in support of the application. For example, if there is no acceptable documentary evidence to establish a material fact like the death of a deceased or the applicant’s relationship with the deceased, an affirmation is required e.g. affirmation of death (M1.1) and affirmation of identity (M2.1).”

28.In my view, that is a generally sound approach. Material facts can be proved by either documentary evidence or affirmation. However, as envisaged by A Cheung J, there could be matters which can be satisfactorily dealt with by way of correspondence, bearing in mind the role of a solicitor as an officer of the court and his duty towards the court.

29.In this connection, I need to highlight the duty of an applicant and his or her legal adviser in an application for grant.  As I have held in the recent case of Re Estate of Wan Sing Hon [2010] 4 HKLRD 621 at para. 22, by reason of the ex parte nature of an application, each applicant and those advising him or her owe a duty of full and frank disclosure to the court.  They also have a duty to exercise due diligence in ensuring that the relevant information is provided to the court.  Thus, the court expects a solicitor acting for an applicant for grant to have carried out all necessary investigation pertaining to an application (including investigation on matters relevant to the issue of priority and suitability) in preparing the application and providing answers to requisitions.  In view of that, in the absence of material suggesting otherwise, the court can proceed on the basis that a solicitor is mindful of the above-mentioned duty in providing answers to requisitions by way of correspondence.  It also follows from that it is a serious matter if a solicitor fails in such duty and appropriate action will be taken by the court if necessary. 

30.Against this background, having regard to the materiality of the requisitions in question and the substance of the answer, it is open to the court to accept an answer from a solicitor in correspondence as sufficient in some cases.  It is not possible to give more definite guidance as it is a matter of judgment and a lot depends on the facts of the case.  The overriding principle, as mentioned, is that the discretion should be exercised judicially having regard to the purpose of the requisitions, the nature of the answers, the source of the information supporting the answers, the size and the nature of the estate to be administered, the personal circumstances of the applicant and his or her relationships with other interested in the estate and other relevant factors.   

31.The relevant specified form in the present case is Form No.S3.2b.  Paragraph 2(b) of the form (which is the relevant paragraph for our purposes) of the form is as follows,

“The Deceased named the following persons the beneficiaries in the estate:

Name   Now Aged

A.B.

C.D.  since deceased

E.F.                                                                                          ”         

32.Mr Lau agreed in the course of hearing that the most satisfactory way to present the relevant information to the court in conjunction with the requirement to use the specified form is to state the name of the wife under the corresponding paragraph 2(b) of the Applicants’ affirmation with the description “divorced on 13 October 2004”.  Coupled with the production of a copy of the relevant decree absolute, there cannot be any doubt that all necessary information would have been supplied in a satisfactory manner.

33.That was not done.  Since then, a copy of the decree absolute was produced together with the letter dated 9 February 2010. By a letter of 4 August 2010, the Probate Master raised this requisition,

“… A copy of the decree absolute between Huang Yanqiong and Cheung Hung was filed …

As the said黄燕瓊 was identified by her Chinese name in the will without an English name, the Applicants should confirm whether the said Huang Yanqiong refer to 黄燕瓊.”

34.Further, the Probate Master took the view that the confirmation should be set out in the affirmation in support of the application and direct the applicants to deal with the same by a supplemental affirmation.

35.This is the decision subject to the present appeal.  Mr Lau submitted that the approach of the Probate Master is too rigid and it would be very costly for the Applicants to do a supplemental affirmation since one of them has to fly back from his usual residence to Hong Kong for such purpose.  Mr Lau also argued that the approach of A Cheung J in Chan Hung Yan (holding that all information required to be supplied under the specified form has to be provided by amending the affirmation) is too rigid. 

36.In his written submissions, Mr Lau contended that the issue as to黄燕瓊 not being entitled to gift under the Will had been settled upon the grant of probate to the late executrix Cheung Chui Mei.  I do not see how this can be correct.  As explained, the court needs not examine the question of priority and suitability in the application for grant of probate.  The affirmation filed by the late executrix in support of her application did not require her to state any information as to the beneficiaries.

37.Mr Lau also contended apart from the similarity of the English and Chinese names in terms of translation, common sense dictates that Huang Yanqiong and 黄燕瓊 must be the same person.  The Will was dated 14 January 2004, the decree nisi was made on 20 August 2004.  Within such a short period, it was impossible for the Deceased to have divorced黄燕瓊 (named in the Will as his wife) and got married with another woman in the name of Huang Yanqiong and divorced her.  In this connection, Mr Lau referred to the requirement of section 12 of the Matrimonial Causes Ordinance Cap. 179.

38.This is a very interesting argument and I acknowledge the force of it.  Unfortunately, it has not been put forward to the Probate Master.  On my part, I am satisfied on the materials available that Huang Yanqiong and 黄燕瓊 is the same person.  The only question is whether the rules require this fact to be confirmed by oath or affirmation.

39.The approach of A Cheung J was derived from Rule 2A(2) of the NCPR.  The Court of Appeal did not consider this aspect of the case explicitly.  However, the conclusion at para. 18 of the judgment of Tang JA (cited above) suggests that strict compliance is not necessary provided that the required information is supplied in a manner which is not less satisfactory having regard to the purpose of the legislation.  To that extent, I can see there is room to depart from the stricter approach of A Cheung J.  But the Court of Appeal also upheld A Cheung J’s decision on the facts of that case.  Thus, the prudent course is to adhere to the specified forms in lodging the application.  As regards information which needs to be provided by way of supplementation, clarification or rectification (whether upon requisitions or otherwise), there is a wider discretion and I have already explained how the discretion should be exercised judicially.   

40.In the present context, the specified form does not cater for a situation (like the present case) where a named beneficiary in the will has been disinherited by operation of law.  Thus, I can see the difficulty facing a solicitor acting for an applicant in such situation in deciding whether to set out the name of the disinherited beneficiary at para. 2(b) of the affirmation.  The solicitor could understandably come to a view that since that beneficiary had been disinherited, the name has no relevance on priority.  As regards suitability, because the named beneficiary was no longer a beneficiary as a matter of law, the omission of the name also has no real relevance.  What is relevant (on the question of suitability), though, is the basis for concluding that such named beneficiary ceased to be a beneficiary. Yet this is not a piece of required information in the specified form.  Whilst it is possible to deal with the situation by adapting the specified form in the manner as suggested at para. 29 above, it may not be fair to hold against Mr Lau on account of his failure to do so.

41.Based on the above analysis, I come to the conclusion that the explanation for omitting黄燕瓊at para. 2(b) of the affirmation is not a piece of information required to be set out in the specified form.  In such circumstances, even on the stricter approach of A Cheung J, it would not be necessary to have it confirmed by affirmation.

42.As I said earlier, on the material before the court I am satisfied with the explanation on the omission of黄燕瓊offered in the correspondence and submission together with the production of the decree absolute.  I will therefore set aside the outstanding requisition by the probate master in that respect.  In so holding, I should not be taken as saying that it would be sufficient in a similar case for a solicitor to assert in correspondence that the named beneficiary had been disinherited upon divorce. In coming to my conclusion, I take into account of the production of a copy of the decree absolute and the submission of Mr Lau at para. 37 above.  As I said, it is unfortunate that Mr Lau did not advance that submission before the probate master.

43.Turning next to the grandchildren, their birth certificates were produced on 20 July 2010.  The probate master raised the following further requisition on 4 August 2010,

“Since para. 4(ii) of the Will only refers to grandchildren, hence it is not immediately apparent from reading the fresh Affirmation why Sze and Nicholas should be included as beneficiaries. An explanation is required.”

Like the requisition on omission of黄燕瓊, the master directed that the explanation should be set out in a supplemental affirmation.

44.In his letter of 9 February 2010, Mr Lau had already explained that Sze and Nicholas were grandchildren.  Thus, the master was not asking for explanation as such.  With the production of the birth certificates, the relationship was verified.  What the master required was that the explanation should be set out in a supplemental affirmation so that the material facts are deposed to.

45.The specified form did not require the relationship of the beneficiaries with the testator to be set out.  Strictly speaking, it may be argued that there is no requirement for setting out the names of the grandchildren under para. 2(b) of the affirmation since the specified form only referred to the beneficiaries named by the Deceased and he did not refer to them by names in the Will.  It depends on what one means by “named”: it may or may not include reference by description (in this case they were referred to as grandchildren in the Will).  Irrespective of the answer to this argument, the specified form does not require an applicant to state the relationship of the beneficiaries with the testator.

46.In such circumstances, though I am of the view that it was legitimate for the master to ask for an explanation, I do not think there is any legal requirement that the answer must be set out in an affirmation, whether by way of amending the original affirmation or filing a supplemental affirmation.  Since the birth certificates have been produced, there is sufficient documentary evidence to verify the relationship.

47.Applying the proper approach as stated above on how explanation can be provided in answer to requisition, I do not see any need in this instance to call for a further affirmation to confirm what is reasonably clear on the documentary evidence.

48.For these reasons, I will also set aside the requisitions regarding the grandchildren.

49.In his submissions, Mr Lau made some observations about the practice of the Probate Registry in processing applications for grant.  I must say that some of his comments are uncalled for though there is room for improvement in terms of flexibility on the part of the court in considering answers to requisitions.  It is hoped that this judgment may help applicants to understand why some requisitions have to be raised. With such clarification, I trust the debate on the jurisdiction of the Probate Registry to raise requisitions should be laid to rest.  At the same time, this judgment can serve as a reminder that the discretion in considering answers to requisitions should be exercised judicially having regard to the matters I have outlined.  Probate practitioners are also reminded of their duties in furnishing information to the court in support of an application.  If proper investigation is made with due diligence, an application should be supported with the relevant evidence.  Once this is done, the process of application for grant should not be a difficult one.  On the other hand, if the material placed before the court suggests that a solicitor fails to understand his duty or to exercise due diligence in the preparation of the application, the court would inevitably have difficulty in placing reliance on unsupported assertion of facts in correspondence.  This would have the unfortunate consequence of delay and adding costs to an application.

Mr S W Lau of Messrs Lau, Wong & Chan, for the Applicants