Wong Wah Sai and Another v. Wong Wah Tung

HCAP 16/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 16 OF 2011

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Before : Hon Poon J in Chambers

Date of Hearing : 7 February 2012

Date of Decision : 7 February 2012

Date of Reasons for Decision : 21 February 2012

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Reasons for Decision

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1.This is the parties’ consent application for revocation of the grant dated 4 April 1995 (HCAG 1886/1995) made in favour of the defendant (“the Grant”) in respect of the estate of the deceased, Mr Wong Yuen Leong.

2.After hearing the parties on 7 February 2012, I allowed the application.  I also directed the matter be referred to the Law Society for investigation to see if the defendant’s former solicitors (“the Solicitors”) were guilty of professional misconduct.

3.I have indicated that I would later hand down the reasons for decision, which I now do.

Background

4.The deceased died intestate on 9 November 1981 domiciled in Hong Kong, leaving Lot No 679 in DD 267, Sai Kung, New Territories and a 3‑storey building erected thereon (“the Property”) as his only estate.

5.The defendant is the deceased’s son.  On 23 February 1995, he applied through the Solicitors for letters of administration in respect of the deceased’s estate.  In the supporting affirmation (“the Grant Affirmation”), the defendant deposed that the only persons entitled to share in the estate were the deceased’s lawful kit‑fat wife, Madam Chow Lai Wan, their two lawful and natural daughters, Ms Wong Yuk Ching and Ms Wong Yuk Kit and himself.  He further deposed that the deceased was never married to any person other than Madam Chow.  Since she had renounced her right to administration, the defendant asserted his entitlement to a grant of letters of administration.  He obtained the Grant on 4 April 1995.  He has not administrated the estate to date.

6.The plaintiffs are the other sons of the deceased.  They commenced the present action on 28 June 2011, applying to revoke the Grant on the basis that they together with the defendant, as the only male issues of the deceased, should have been entitled to the deceased’s estate, which remains unadministered, in accordance with section 17 of the New Territories Ordinance, Cap 97.  They further alleged that there were mistakes in the Grant Affirmation in that they defendant had, among other things, denied them as the beneficiaries.

7.The defendant acts in person in these proceedings.  In the acknowledgment of service, he indicated that he did not wish to contest the claim.  He further filed a notice of admission under Order 27, Rules of the High Court, Cap 4A on 6 July 2011.

8.The plaintiffs initially filed a summons for judgment pursuant to Order 27, rule 3. The defendant was absent at the hearing on 21 July 2011 whereupon Master Levy gave directions for future conduct, including the filing of a consent summons if the defendant consented to the application.  The plaintiffs then filed a consent summons for revocation of the Grant on 19 August 2011 which was signed by the plaintiffs’ solicitors and the defendant.

9.Master Levy then raised queries about the application.  Eventually she referred the matter to me for disposal.  All the persons who may be affected by this application have now given their consent in writing.

Revocation

10.Under section 33(1) of the Probate and Administration Ordinance, Cap 10, a grant of letters of administration may be revoked if it appears to the court that it ought not to have been granted.  Non‑disclosure of material facts in an ex parte application for a grant is a well‑established ground for revocation : see Ghafoor and others v Cliff and others [2006] 1 WLR 3020, per David Richards J at paras 46‑47, Re Estate of Wan Sing Hon [2010] 4 HKLRD 621, per Lam J at para 22.

11.The rationale behind this ground is self‑evident.  Given the nature of an ex parte application, the applicant and his legal advisers must proceed with the highest good faith. It is imperative that they should make full and frank disclosure of all facts and matters material to the application for grant.  Time and again, the court has reminded the parties and their legal advisers of the importance to fully discharge the duty and warned them of the serious consequences that may follow if they do not.  A recent reminder can be found in Re Estate of Cheung Hung [2011] 1 HKLRD 455, per Lam J :

“29. …[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.”

12.Here, cogently relevant to the application for the Grant, which the defendant is and was at all material times fully aware of but was glaringly missing in the Grant Affirmation, is this.  The deceased in fact had relationships with three women who bore him children as follows :

Women	Children
Madam Tsang Kap Cheung	The 1st plaintiff and Ms Wong Lan Fong
Madam Chow Lai Wan	The defendant and his two sisters
Madam Tam Ching Ping	The 2nd plaintiff

And the plaintiffs and the defendant, as the deceased’s male issues, are entitled to his estate.

13.Further, it is now doubtful if Madam Chow was the lawful kit‑fat wife of the deceased.  The exact legal status of the three women via‑s‑via the deceased is, on the available evidence, unclear.

14.By not disclosing the above matters and representing to the court in the way as he did in the Grant Affirmation, the defendant had undoubtedly failed in his duty to make full and frank disclosure to the court when he applied for the Grant.  Indeed, he had deliberately misled the court.  The Grant must therefore be revoked.  And I so ordered.

15.Now that the Grant is revoked, the plaintiffs (and the defendant) may wish to apply for a grant of letters of administration later, if so advised.  I should make it clear that what I have decided here, which is purely based on the evidence presented before me, does not have the effect of determining their entitlement to the grant or pre‑empting any requisition that the Probate Registry or the Probate Master may wish to make when processing the application.

Referral

16.The defendant explained, under oath, that when he gave instructions to the Solicitors, he had related all the relevant facts to them.  The Solicitors however advised him that there was no need to disclose them in the Grant Affirmation.  If what the defendant alleged is true, the Solicitors would be guilty of serious professional misconduct, which plainly called for investigation by the Law Society.  I therefore made the referral to the Law Society as I did.

17.As what the defendant had alleged against the Solicitors might turn out to be false after investigation, I told the defendant at the hearing that should that happen, I might refer the matter to the Department of Justice for considering if he should be prosecuted for perjury or any other offence.

Mr Wilfred Tsui, instructed by Louis K Y Pau & Co, for the plaintiffs

The defendant appeared in person