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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A. Absence from the appointment hearings

1.The deceased, a widow, died intestate domiciled in Taiwan.  The applicant, Mr Lau, a practicing solicitor, makes an application for a grant of letters of administration of the deceased’s estate in the capacity of the lawful attorney under a Power of Attorney executed by the deceased’s two surviving lawful and natural daughters (“the Daughters”).

2.Requisitions were raised, and answers were provided.  An appointment hearing (“1^st Appointment Hearing”) was directed to be held on 12 April 2013 to deal with the requisitions.

3.Mr Lau was absent from the 1^st Appointment Hearing.

4.In view of the fact that Mr Lau did not provide any explanation for his absence from the 1^st Appointment Hearing, I gave Mr Lau one more opportunity to attend a second hearing (“2^nd Appointment Hearing”) on 10 May 2013 to deal with the outstanding requisitions (which are discussed in paras 44-46 below and set out in the court’s letter of 2 May 2013) and any problems that may have arisen in this application. 

5.Mr Lau was again absent without any explanation from the 2^nd Appointment Hearing. In the letter of 2 May 2013, Mr Lau was warned that if he failed to attend the 2^nd Appointment Hearing, this court may make any adverse order in his absence, including rejecting his application for a grant.  Before giving my direction in relation to Mr Lau’s failure to attend the hearing, I wish to briefly set out the background leading to the raising of the requisitions and the directions for the holding of the hearings.

B.   Background leading to the appointment hearings

B.1   The ex-parte application

6.Since the deceased died domiciled outside Hong Kong, rule 29 of the Non-Contentious Probate Rules (Cap 10A[1]) applies, and an order under rule 29(b) leading to a grant will need to be obtained prior to the application for the grant.

7.In the application for the rule 29(b) order, Mr Lau filed an oath[2] (“the 1^st Oath”) and the legal opinion (“Chen’s Opinion”) of a Taiwanese lawyer, 陳鴻飛.

8.In Chen’s Opinion, the expert states that the deceased was only survived by the Daughters who are entitled to inherit and administer the deceased’s estate according to the law of Taiwan.

9.In the 1^st Oath, Mr Lau relied on Chen’s Opinion and asked for a grant to be issued to him as the lawful attorney of the Daughters, who are “of all the persons entitled to administer the estate of the Deceased by the law of the place where the Deceased died domiciled…[3]”.

10.Mr Lau obtained the rule 29(b) order on the strength of the aforesaid evidence.

B.2   The grant application

11.Upon obtaining the rule 29(b) order, Mr Lau filed the present application for a grant.  In the oath (“the 2^nd Oath”)[4] in support of the grant application, Mr Lau similarly swore that the Daughters were the only persons entitled to “share in and administer her estate by the Laws of Taiwan”[5].

12.The matter that led to the requisitions to be discussed below emanated initially from para 1(C) and (D) of the 2^nd Oath.  After stating in para 1(B) that the Daughters were begotten by the deceased, Mr Lau made the following averments:

(a) According to Chen’s Opinion, the deceased had two named other sons (“the Sons”) who were not entitled to share in and administer the estate of the deceased:  Para 1(C).

(b) The deceased had “no other issue or children surviving or predeceasing her” other than the Sons and the Daughters: Para 1(D). 

C.   Requisitions

C.1   Clarification

13.It is immediately apparent that the said assertions appearing in paras 1(C) and (D) of the 2^nd Oath are in stark contrast to Chen’s Opinion and the averments in the 1^st Oath, both of which made no reference whatsoever to the deceased having any sons.

14.Clarification was therefore required and requisition was raised.

15.Mr Lau answered the requisitions by correspondence.  In the answer Mr Lau referred to a previous grant application, HCAG 14030/11 (“the Husband’s Application”), which was in fact an application also made by Mr Lau in the capacity of an attorney in respect of the estate of the deceased’s husband, Chung Ching Wan (“the Husband”) who died domiciled in Taiwan.  It was asserted in the oath in support of the Husband’s Application that the Sons were born by the deceased.

16.The disclosure for the first time that the Sons were not begotten by the deceased seems to be contradicting Mr Lau’s assertion in the oath in support of the Husband’s Application that the Sons were born by the deceased. A further clarification was required.

C.2   Rectification of error       

17.In the light of the mistake as disclosed in the oath in support of the Husband’s Application concerning the status of the Sons, the averment in the oath is therefore not valid.  Mr Lau was further asked to rectify the error although the grant had already been made to Mr Lau in respect of the Husband’s estate.

C.3   Non-adherence to Specified Form

18.Subsequent to the clarification requisition, Mr Lau amended the 2^nd Oath (which amendment will be discussed later).  In the course of vetting the amended 2^nd Oath, the Probate Registry found that Mr Lau had not followed the Specified Form L1.3 (which is applicable to an application by a child).  As it is averred in this application that the deceased is a married woman, Mr Lau should have included in the 2^nd Oath an averment as stipulated in para 4(b) of Specified Form L1.3 that prescribes as follows:

“4(b) E.F. was never married to any person other the Deceased, his [lawful wife] [lawful kit-fat wife] and he had no concubine].”

19.Mr Lau is therefore required to comply with the said requirement by including an averment in accordance with the prescribed para 4(b) as specified in Specified Form L1.3.

D.   Answers

20.Before discussing in Section E below if the answers have sufficiently dealt with the requisitions, I set out below the essence of his answers in relation to the requisitions raised.

D.1   The clarification requisition

D.1.1   Amendment of the 2^nd Oath

21.Mr Lau amended the 2^nd Oath by deleting from it the entire para 1(C) and the part concerning the Sons in para 1(D).  Contrary to the previous averments concerning the Sons, the amended 2^nd Oath in its present form only states that the deceased has no other issue or children other than the Daughters.

D.1.2   Explanations

(a)   The requisition is irrelevant

22.In explaining the discrepancies now found to have existed in this application and the Husband’s Application concerning the Sons, Mr Lau referred to the opinion of a Taiwanese lawyer, 金學坪, (“Gin’s Opinion”) filed in the Husband’s Application.  In Gin’s Opinion, the expert averred that the Sons, as Mainland Chinese, were not entitled to the estate of the Husband according to the law of the latter’s domicile, i.e. the law of Taiwan.  Mr Lau then contends that the requisition is irrelevant as the omission of the Sons from the Oath in this application would not be fatal to the application, and it only concerns distribution[6].

(b)   The mistake was due to a wrong presumption

23.Although Mr Lau admitted he had made a mistake by having wrongly asserted in the Husband’s Application and this application that the Sons were born to the deceased, his explanation for the mistake is rather confusing.  In order to ensure that there is no misreading of his explanation, I think it would be apt to set out what he has explained:

“ the mistake of presuming that they were born by the deceased in [the Husband’s Application], and stated as such in my oath in [the Husband’s Application]. However, when [the Sons] had been omitted in [Chen’s] Opinion in the present case, enquiry was made and I was told that the [Sons] were not the issue of the deceased. That is why they were and in fact must be omitted from the oath.’[7]

24.As to how the errors have occurred in the 2^nd Oath before para 1(C) and the offending part of (D) were deleted, Mr Lau explained that it was due to an inadvertence of having mistakenly copied from the content of his oath in support of the Husband’s Application onto the 2^nd Oath[8].

(c)   The mistake was due to a communication problem

25.The third and the latest reason Mr Lau gave is found in the written submission he lodged before the 1^st Appointment Hearing (to be discussed in Section D.4 below).  He attributes it to “a communication problem with the beneficiaries” for “they all lived in Taiwan”.

D.2   Rectification requisition

26.Notwithstanding the admission of the error having been made in the Husband’s Application in relation to the Sons, Mr Lau has refused to rectify the error, contending that the mistake should not be allowed to prevent the grant being issued to him in this application.

D.3   Non-adherence to the Specified Form Requisition

27.Mr Lau contended[9] that it was a new requisition and that the Specified Form L1.3 is not a proper form,

“ for any applicant who obtained an order whether under Section 36 of Probate and Administration Ordinance or NCPRs29 and 30. This is because after the relevant order has been granted the applicant derives his right from the order not because of his relationship with the deceased. The proper form should be Form 163 (A6.168) of Trustee (sic) & Coote’s Probate Practice (29^th Ed) at p.1083)”

28.Mr Lau has yet to comply with the requisition.

D.4   The 1^st Appointment Hearing    

29.From the answers of Mr Lau as contained in the correspondence exchanged between him and the Probate Registry, a stage had been reached where I considered that an oral hearing would be appropriate. Mr Lau had strongly disagreed with the requisitions and insisted that all the requisitions had been complied with.

30.I considered the holding of an oral hearing would achieve the purposes expounded by Lam J (the Probate Judge as he then was) in Re Chung Ching Wan [10] (which is also conveniently summarised in Para 23 of the “  Guide to Non-Contentious Probate Practice” (“the Guide”)  published by the Judiciary in 2013)[11].

D.4.1   Refusal to attend

31.After the hearing date for the 1^st Appointment Hearing was fixed, Mr Lau has in his letters expressly indicated that he would not attend the hearing and the reasons he has given are:

(a)   A Probate Master has no power

32.Mr Lau challenged the power of a Probate Master to “summon an applicant or his solicitor to appear before him/her[12]”.  Despite being reminded of a practitioner’s duty to attend the oral hearing as set out in Part 2, Sections B3 and B4 of the Guide,  Mr Lau said that the directions in the Guide “can be ignored” as they are not authority.  Since the Probate Master has not cited “any law that enables a probate master to require an applicant or his solicitor to appear before him or her, she has no power to require me to appear before her”[13].

(b)   Written submission is sufficient  

33.Prior to the date of the 1^st Appointment Hearing, Mr Lau lodged a written submission together with a document entitled “the Merit of Written Submission in Civil Procedure” (“the supplemental submission”).  In them, Mr Lau submits that written submission will achieve the purposes of a hearing.  In the supplemental submission, Mr Lau repeatedly criticizes the reasoning of Lam J in Re Chung Ching Wan and submits - referring to the jurisprudence developed in the French administrative law and EU law- that “there is no legal problem that cannot be solved by correspondence and written submission”[14].

34.Further, Mr Lau submits that to require personal attendance at hearing may be in conflict with order 1A rule 1 of the Rules of the High Court, and further cites instances where a court has disposed of an application on paper without hearing.

(c)   All the requisitions have been complied with

35.In the written and the supplemental submissions, Mr Lau submits that he has complied with all the requisitions and the requirements of the law in this application.

D. 5   The 2^nd Appointment Hearing

36.Since Mr Lau had neither asked for excuse nor provided for any proper explanation for his absence from the 1^st Appointment Hearing, I was inclined to give him one more opportunity to attend a hearing to deal with the requisitions. Thus, the 2^nd Appointment Hearing was scheduled.

37.Mr Lau was absent from the hearing. Similarly, Mr Lau did not give any explanation for his absence.

E.   Discussion

38.It will be instructive, before discussing the question of the sufficiency of the answers and the disposal of the requisitions, to recap the probate jurisdiction and the correct approach to requisitions.

E. 1   Jurisdiction and principles

39.As conveniently summarized in paras 13 and 14 of the Guide, the probate jurisdiction is inquisitorial.  “Under s.8A(1) of the PAO [Probate and Administration Ordinance (“PAO”)], a Probate Master may require any applicant for a grant to provide any information relating to the estate concerned which appears to him to be necessary for the purposes of exercising his jurisdiction in making the grant.  Further, r5(1) mandates a Probate Master not to allow any grant to issue until all inquiries which he may see fit to make have been answered to his satisfaction.  Accordingly, if in doubt, the Probate Master is duty bound to raise requisitions [see Re Yip Ho [2005] 4 HKC 330 (CA) per Tang JA at 335I (§15); Re Cheung Hung [2011] 1 HKLRD 455 per Lam J at 464 (§23)]”.

40.In Re Chung Ching Wan, the learned Probate Judge Lam has given a very useful guidance when considering whether a requisition is satisfactorily answered.  The guidance has been conveniently set out in para 24 of the Guide and it include matters such as:

(1)     Purpose of the requisitions;

(2)     Nature of the answers;

(3)     Source of the information supporting the answers;

(4)     Size and nature of the estate to be administered;

(5)     Personal circumstances of the applicant and his or her relationships with other persons interested in the estate; and

(6)     Other relevant factors[15].

41.I will defer to the principles the learned judge expounded and be guided by those factors he outlined.

E.2   Has the discrepancy been clarified?

42.Before considering if Mr Lau has satisfactorily clarified the discrepancy regarding the Sons, I think it is important to recap the matter Mr Lau was asked to clarify.

43.This requisition originally stems from the content of the 2^nd Oath before it was amended.  As has already been discussed above, Mr Lau has wrongly alluded to an averment regarding the Sons that had not been mentioned in Chen’s Opinion and also the 1^st Oath.  It is certainly a very serious discrepancy, which should be properly clarified and accounted for.  It touched upon the issue of entitlement to grant.

44.In reply, Mr Lau admitted having made a mistake in his assertion in the 2^nd Oath (as well as in the oath in support of the Husband’s Application (as he has later disclosed).  However he does not seem to have furnished any further basis for that mistake beyond the explanation of wrong presumption, blind-copying from a previous application and communication problems etc.  What in my view is necessary is a clear explanation as to how the mistake has actually come about, going back of course to the mistake in the oath in support of the Husband’s Application and the preparation of the 1^st and 2^nd Oaths.

45.Accordingly, he should be able, in my view, without much difficulty to furnish the following further information:

(a)   How and under what circumstances the mistake has occurred? 

(b)   Who is the Sons’ natural mother and the latter relationship with the Husband, whether it was lawful or otherwise?

(c)   Depending on the answers to (b), whether the mistake concerning the status of the Sons would change Gin’s Opinion and Chen’s Opinion concerning the persons to be entitled to succeed in and administer the Husband’s as well as the deceased’s estates?

46.All such information may likely be relevant to the question of whether there may be in fact person(s) (other than those identified in the application) who would be entitled to administer and share in the Husband’s estate.

47.In deciding if these matters are relevant to this application, I have considered Mr Lau’s answer in one of his letters by which he states that “Poligancy (?) is unlawful under the Taiwanese law and concubine has not (no) place to play.  In Taiwan 户口system, any one who is not registered as spouse will not be regarded as such, Therefore Chung Ching Wan (the Husband) might have married a thousand time(s), but only Chung Hsioa Feng (the deceased) was his spouse. ”[16].

48.I cannot agree with this contention.

49.As the matter presently stands, the status of the Sons is still unknown.  Mr Lau’s contention that it matters not whether the Husband has married a thousand times has not been supported by any evidence. It is a bare assertion and cannot be accepted.

50.I fully acknowledge that the inquisitorial jurisdiction does not necessarily mean that a Probate Master should require an applicant to provide every single aspect of facts and materials in relation to each and every assertion in an application.  I further accept that in appropriate cases, a fact – as illustrated in Re Chung Ching Wan, the appeal Mr Lau made against some of the requisitions in the Husband’s Application – can be implied without further inquiry.

51.In this application, however, in the absence of the averment as required in para 4(b) of the Specified Form L 1.3 and the lack of further details regarding the Sons and their mother’s relationship with the Husband, I am, unlike the situation as discussed in Re Chung Ching Wan, unable to make the necessary implication that the Husband had only one lawful marriage with the deceased as Mr Lau has averred in the Husband’s Application.

52.In Re Chung Ching Wan, it was an appeal Mr Lau lodged against some of the requisitions raised by the Probate Master, one of which was concerned with the status of Chen Lai Wen, the mother of the Husband’s other two children.  In the judgment, Lam J (as he then was) referred to an affidavit of Mr Lau in which Mr Lau swore that  the Husband was never married to any person other than the deceased and the Husband had no concubine. Lam J (as he then was) had this to say:

“ If that statement is accepted (at the moment I see no reason why it should not be accepted), that would by implication exclude Chen Lai Wen as a beneficiary to the estate…. whether this statement should be accepted it is a matter for the Master”

(Re Chung Ching Wan at para 14).

53.The averment that the Husband “was never married to any person other than the deceased and he had no concubine” is an important confirmation that would in my view likely enable a Probate Master to rely on the averment and conclude by implication that the Husband’s relationship with Mdm Chen was one other than a lawful union.

54.In addition, owing to the fact that all non-contentious grant applications are made ex-parte, a practitioner has a duty to prepare the oath with accuracy.  Any mistake will need to be properly explained.[17]

55.The mistake and the explanations of how the mistakes have come about somehow appear to suggest that a number of important facts contained in the application may not be entirely accurate.  There is therefore a concern that as to whether the evidence that has been filed in support of this application, be it the 1^st and 2^nd Oaths or Chen’s Opinion, is true and accurate.

56.In order to enable the Probate Registry to issue the grant to Mr Lau, he should properly account for the discrepancy so that it can be shown that notwithstanding the mistake, the conclusion reached by the expert in Chen’s Opinion is still valid.

E.3   The rectification of requisition

57.The oath in support of the Husband’s Application is admitted to be wrong in connection with the assertion of the Sons being the children and issue of the deceased.

58.In most cases, a mistake found in an application where a grant has been issued will not affect an applicant’s entitlement in another application.

59.This case is different where relationships between the Sons, their mother, the Husband and the status of the deceased, are   inextricable. The assertions made in both the Husband’s Application and in this application must be consistent and not contradictory.  Quite apart from the information now disclosed that one of the Sons (who has supposedly been disinherited according to Gin’s Opinion) is, through his solicitor, asserting his entitlement to the Husband’s estate, I am of the further view that the mistake in relation to the deceased being the mother of the Sons is not a minor matter and should not be disregarded as it may lead to the revocation of grant issued to Mr Lau.

60.Thus, the need for rectification does not merely go to the issue of distribution as Mr Lau alleges.  Non-disclosure of material facts in an ex parte application for a grant is a well established ground for revocation if it appears to the court that the grant ought not to have been granted: see Wong Wah Sai & Ano. v Wong Wah Tung [2012] HKCU 400 per Poon J at para 10, citing Ghafoor and others v Cliff and others [2006]1 WLR 3020 and Re Estate of Wan Sing Hon [2010] 4 HKLRD 621.

E.4   The non-adherence to the Specified Form           

61.With respect to the non-compliance with this requisition, it may be instructive to refer to the relevant passage of the Guide that states:

“  when fulfilling the duty to answer requisitions, practitioners should not simply provide answers without paying attention to the manner of compliance.  Substantial 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” (See Yip Ho (CA) [2005]4 HKC 330 at para 18 per Tang JA). For example, if an applicant has supplied all the information required but has rearranged the paragraphs of the specified format random, it cannot be said that because all the information has been supplied there has been substantial compliance.”[18]

62.The Probate Registry handles and processes more than 10,000 applications every year, and it may easily fail to notice errors if the Specified Form has not been followed (as it has happened in this application).  The rational for requiring an applicant and the practitioner to follow the specified forms is clear, that is, the forms are designed to reduce processing time and facilitate processing as well as understanding by applicants (whether represented or otherwise).  Thus, there is likely to be delay if applicants are free to modify the specified forms as they please[19].

63.Further, I also do not agree with Mr Lau’s contention that the correct form to be used should be Form 163 (as set out in Tristram & Coote’s Probate Practice, 30^th ed) used by the English Probate Registry.  The said from applies to an application pursuant to an order under s116 of the Supreme Court Act 1981 in respect of a testate estate, which s116 is similar to s36 of the Probate and Administration Ordinance (“PAO”). The present application is neither an application for a testate estate nor based on an order granted in s 36, PAO.

64.Since the Probate Registry has mandated the use of the Specified Forms, Mr Lau must use the Specified Form instead of a form being used in England.  Section 72 of the PAO only allows the English practice to be followed if no provision has been made.  This is not such a situation.

65.This case does not only serve as a good example demonstrating why Specified Forms should be used, it also demonstrates how an applicant’s refusal to comply with a simple and procedural requisition has caused unjustifiable distraction.  This, in my respectful view, does not serve the best interest of a solicitor’s client.

E.5  The  absence from the appointment hearings

66.Generally speaking, a probate master will not direct a hearing to be held unless he or she takes the view that the applicant or the practitioner will not take the initiative to fix a hearing to deal with problems arising from an application.  The probate master however will sometimes on his or her own motion direct the holding of an oral hearing if it is believed that such hearing will help expedite the case and resolve any issues or difficulties encountered in an application.

67.As discussed above, Mr Lau is the appellant in Chung Ching Wan and should be therefore expected to be familiar with the useful purpose of an appointment hearing and the duty of a practitioner to attend such a hearing which has already been expounded in considerable detail by Lam J (as then was) in Re Chung Ching Wan.  Mr Lau is bound and should consider himself to be bound by the reasoning espoused in that case.

68.Mr Lau however seems to have deliberately ignored the Guide on the ground that it has no force of law (which is the case). Notwithstanding, however, Mr Lau appears to have ignored the direction of the Probate Judge, Poon J, stated in the Foreword.  In it, the learned Judge states that the Guide sets out the current practice of the Probate Registry and that practitioners are expected to comply with the practice fully and faithfully[20].

69.Further, I do not agree with Mr Lau that written submission without personal attendance at a hearing can achieve the purposes of a hearing.  His reliance on the Rules of the High Court in his submission is without basis.

70.Since the introduction of the Civil Justice Reforms, some of the applications, such as interlocutory applications in civil proceedings may be, for the purposes of saving costs and time, disposed of on paper without a hearing.  One however must not confuse with non-contentious probate proceedings with civil proceedings as the Rules of the High Court expressly exclude the application of the said rules to the former proceedings (see Order 1 rule 2 of the Rules of the High Court).  Since this application is in the nature of a non-contentious probate application, the Rules of the High Court do not apply.  Mr Lau’s reference to these rules is, with respect, clearly misconceived.

71.With regard to the personal attendance of the hearing, para 20 of the Guide states, “it is the duty of the practitioner to attend such a hearing and advance full submissions in support of his stance.” (Emphasis added)

72.Thus, it is Mr Lau’s duty to attend such a hearing.  If an applicant is absent from a hearing, a court may make any order or give directions in his absence.  In this case, Mr Lau, as the applicant for a grant, should have, apart from lodging a written submission, attended the hearing in order to answer questions from the court concerning matters arising from the requisitions.  Given the fact that Mr Lau is no ordinary applicant, but a practising solicitor, he, as an officer of the court, should act appropriately in accordance with the standards governing the conduct of a solicitor.  By deliberately ignoring a court’s direction requiring him to attend without asking for excuse from attendance, Mr Lau has failed in his duty as an officer of the court, and his conduct has fallen below the professional standards expected of a solicitor.

F.    Direction

73.Mr Lau has been given sufficient opportunity to deal with the outstanding requisitions and warned of the consequence of non-compliance with the requisitions and the directions of the court.  As a result of his contumelious and inexcusable conduct, the requisitions have been left at large. Accordingly, in the light of the warning given in the letter of 2 May 2013 (see para 5 above), I reject this application without prejudice to a fresh application to be made for a grant of the deceased’s estate.    

Messrs Lau, Wong & Chan for the applicant, absent.