Re Ang Chiok

HCAG5464/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

NON-CONTENTIOUS APPLICATION FOR GRANT

NO. 5464 OF 2010

-------------------------

-------------------------

Coram: Master Levy in Chambers

Date of Hearing: 2 December 2010

Date of Judgment: 2 December 2010

Judgment

1.According to rule 6 of the Non-Contentious Probate Rules (Cap.10), every application for a grant shall be supported by an oath, in which it must be shown clearly that the applicant does have a prior right to a grant in accordance with the provisions contained in rule 21; therefore the applicant must state clearly therein his or her relationship with the deceased.

2.Mr Sze Shun Kook (施純局), the applicant in this case, applied for (the administration of) the estate of the deceased, Ms Ang Chiok (洪雀), through a solicitor.

3.In the affirmation supporting the application for letters of administration, Mr Sze claimed that the deceased had died intestate, and was survived only by a natural and lawful son (Mr Sze himself) and a natural and lawful daughter, Miss Sze.

4.In the last paragraph of his affirmation, Mr Sze applied for letters of administration of the deceased’s estate as her natural and lawful son, and in the capacity of one of the persons entitled to share in her estate.

5.Together with the affirmation, the solicitor acting for Mr Sze also filed a Notarial Certificate of Kinship (Jin Zheng Zi No. 1590 of 2007) dated 13 April 2007 issued by the Notary Office of Jingong City, Fujian Province, the People’s Republic of China and authenticated by the Department of Consular Affairs of the Ministry of Foreign Affairs.  

6.The notarial certificate showed that both Mr Sze and Miss Sze were the applicants of the certificate and certified that they were respectively the “son” and “daughter” of the deceased and her deceased husband, SEE Lai (施能印).

7.In relation to Mr Sze’s application for letters of administration, Miss Sze has entered a caveat (HCCA 1102/2010) through her solicitor and further applied for her to join with Mr Sze to be the administrators of the deceased’s estate.

8.After Miss Sze had made the above application, Mr Sze discharged his solicitor and became unrepresented. On 23 November 2010, he filed an affirmation opposing Miss Sze’s application. In the affirmation, he also mentioned the relationship between himself, Miss Sze and the deceased. He alleged that the deceased was his adopted mother, while the natural father of Miss Sze was Hung Yuen Ching (transliteration) (洪元程) and her natural mother was Sze Wu Law (transliteration) (施烏螺), the younger sister of Sze Lai. In other words, Miss Sze was not the natural daughter of the deceased and her natural father was not Sze Lai, husband of the deceased.

9.Moreover, Mr Sze also alleged that the deceased had another three sons.

10.In the affirmation, Mr Sze did not produce any supporting document regarding the adoption, nor did he give any account of how the deceased had adopted him. He did not disclose the identity of his natural parents either.

11.Since Mr Sze’s affirmation filed in HCCA1102/2010 (i.e., the affirmation mentioned in paragraph 8 above) contradicted the contents of his supporting affirmation filed in this application, I used the opportunity of handling Miss Sze’s application today to clarify with Mr Sze during the hearing, asking him whether he was a natural son of the deceased. Mr Sze personally confirmed to me that neither him nor Miss Sze were the natural children of the deceased. In facts, the deceased did not have any natural children.

12.Therefore, Mr Sze’s claim that both himself and Miss Sze were the natural children of the deceased stated in his supporting affirmation filed in this application was not true. Although at this stage, the court is unsure whether Mr Sze is a lawful son of the deceased, Mr Sze has unquestionably failed, in his affirmation, to disclose accurately and correctly the relationship between himself, Miss Sze and the deceased. It is highly improper.

13.The Probate Registry handles over 10,000 cases of non-contentious grant applications every year, which are made ex-parte. The court is to decide whether a grant should be issued based on an applicant’s supporting affirmation and other corroboration. Therefore, the affirmation can be regarded as the soul of the entire application, the contents of which must be true and accurate.

14.Apart from the supporting affirmation, other documents proving one’s relationship with the deceased, e.g., birth certificates, are also very important documents.

15.In this application, the only corroborative document proving the relationship between Mr Sze and the deceased is the Notarial Certificate of Kinship mentioned in paragraph 5 above. Although this type of document is not a direct proof of kinship like a birth certificate, an applicant of this type of notarial certificate should, upon making the application, ensure that the matters certified in the notarial certificate are unequivocally true and correct. Otherwise, the applicant should apply for a supplementary notarial certificate from the issuing authority. Regarding the notarial certificate in this application, since the applicant has to rely on it to prove his capacity in relation to the deceased, the kinship must be clearly specified therein, e.g. whether the applicant is “a son born in wedlock”, “a son born out of wedlock” or “an adopted son” of the deceased. The description of the relationship as “son” or “daughter” found in the notarial certificate in this application is rather uncommon. The court will not accept such ambiguous description of relationship and shall make further enquiry.

16.The contents of Mr Sze’s affirmation filed by him regarding his relationship with deceased was not true, hence this court could not accept his application. Although this hearing was originally meant to handle the application filed by Miss Sze in HCCA1102/2010, Mr Sze’s application in this case has also been dealt with together. His application is hereby dismissed and the court will consider referring the matter of Mr Sze’s filing of untruthful affirmation to the Secretary for Justice for him to follow up and decide whether any criminal prosecution is to be launched.

Postscript:

17.I have decided to pass this application to the Registrar for referring to the Department of Justice for following up.

18.Besides, I instruct that this judgment be reported, with a view that any applicants or their solicitors who apply for the grant of probate or letters of administration, are to act with prudence in the preparation of affirmation to ensure the contents therein are true and correct.

HCAG 5464/2010:

Applicant, present, acting in person.

HCCA 1102/2010:

Joseph Tsang of Tsangs, for the caveator.

The person warning: present, acting in person.

Translated by the Judgment Translation Unit of the Judiciary and approved by Mr. P. Y. Lo, Barrister-at-law.