Re Chung Hsioa Feng

HCAG 15196/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 15196 OF 2012

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D E C I S I O N

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1.This decision is in actual fact, a postscript, which is to be read together with the earlier Decision (“the Decision”) I handed down on 14 May 2013. Hence, the same abbreviations are to be adopted in this 2^nd decision.

2.Subsequent to the handing down of the Decision, the solicitors’ letter dated 7 May 2013 addressed to my clerk (but the record shows that it was received by the Probate Registry on 8 May 2013) and the further amendment to the 2^nd Oath filed on 8 May 2013 were only brought to my attention on 15 May 2013 (i.e. the day after the handing down). 

3.The letter and the amendment were filed apparently to respond to the direction I gave in the court’s letter of 2 May 2013 (see para 5 of the Decision) and to comply with the outstanding directions.

4.Thus, it is necessary for me to re-consider my direction given in the Decision in the light of the matters aforesaid.

A.   Regarding the 2^nd Appointment Hearing

5.In the letter, Mr Lau reiterated that he would not attend a hearing before me, as according to him, I had no right to summon him to appear.  Repeatedly, Mr Lau referred to cases that could be disposed of on paper in lieu of a hearing

6.He further mentioned that there was no justification for the court to summon him to attend a hearing since extra costs would be incurred in a hearing.

7.I have in Section E.5 of the Decision stated my view as to the function and purposes of an appointment hearing in non-contentious probate applications and the duty of a practitioner in this regard. No repetition is needed. 

8.It is further noted that Mr Lau has given costs and expenses as a reason for not complying with the court’s direction in attending the appointment hearing. This, in my view, is no excuse or justification for Mr Lau’s inexcusable conduct.

B     Further Answers

9.In the letter, Mr Lau has attempted to comply with the outstanding directions, and I will in turn summarize the answers in accordance with the sub-headings under Sections E.2 to E.4 of the Decision.

B.1   Has the discrepancy been clarified?

10.With  regard to the matters that I have set out in para 45 of  the Decision , Mr Lau explained in the letter that he had wrongly thought that the Sons were born by the deceased, and after making inquiries, he had been informed that the “mothers” of the Sons were unknown. He confirmed that the status of the Sons would not affect the entitlement of the beneficiaries in the Husband’s Application as well as this application.

B.2   The rectification requisition

11.It was averred in the letter that given the fact that the status of the Sons would not change Gin’s Opinion concerning the entitlement of the beneficiaries in the Husband’s Application, Mr Lau did not consider it necessary to rectify the error made in the oath in support of the Husband’s Application.

B.3   The non-adherence to the Specified Form

12.Mr Lau amended para 4 of the 2^nd Oath on 8 May 2013, by following para 4(b) of Specified Form L1.3, confirming that the Husband was never married to any person other than the deceased and had no concubine.

C.   Are the outstanding requisitions answered?

13.Mr Lau’s subsequent compliance with Specified Form L1.3 by amending the 2^nd Oath in confirming that the Husband was never married to any person other than the deceased and had no concubine would have the effect, in my view, of further confirming, by implication, that the relationship of the mother or mothers of the Sons with the Husband was one other than a lawful union.

14.With his further confirmation that the error concerning the Sons would not have affected the opinions of the experts in both this application, and the Husband’s Application - albeit the rather in my view woolly explanation for the mistake – I consider, having borne in mind the various guiding principles as set out in Re Chung Ching Wan (see para 40 of the Decision), the outstanding requisitions are by and large substantially answered.

15.Further, as it has been admitted that Mr Lau’s averment in the oath in support of the Husband’s Application that the Sons were begotten by the deceased is wrong, I direct Mr Lau to file within 14 days a short corrective affidavit in the Husband’s Application to correct this error.

D   Conclusion and direction

16.In view of the fact that when I gave the direction in rejecting the application for grant as set out in para 73 of the Decision was without the benefit of the answers contained in the letter and the further amendment to the 2^nd Oath, I consider the direction should be superseded with a new direction as follows:

17.The outstanding directions are substantially answered. I am satisfied that the Daughters, according to the law of the place where the deceased died domiciled, are entitled to inherit and administer the deceased’s estate. I direct, upon the payment of the prescribed fees, the letters of administration be issued to their lawful attorney, Mr Lau.

Messrs Lau Wong & Chan for the applicant.