Man Kam Cheung Richard v. Man Pak Wan Paul

HCA 1731/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1731 OF 2009

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D E C I S I O N
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1.I first deal with the summons to amend the statement of claim.

2.In this case the plaintiff and the defendant are brothers.  The plaintiff claims against the defendant for account of monies purportedly received by the defendant as trustee.  The monies were said to have been received by the defendant in relation to the plaintiff’s shares in certain Tso/Tong and also profits arising from the deceased father’s leasing business. 

3.Today is the pre-trial review, and the plaintiff seeks to amend the statement of claim.  The application is purportedly supported by an affidavit of the instructing solicitor exhibiting an unsigned and unsworn draft affirmation of the plaintiff.  This is totally unsatisfactory.  For a late application, notwithstanding the plaintiff is out of the jurisdiction of Hong Kong, the least that could have been done is for him to have signed the draft and faxed it to the solicitors which may then be attached to the affidavit of the solicitor as an exhibit.

(Discussion between court and counsel)

4.Regrettably, I have to correct myself in the middle of my reasoned decision because counsel handed up to me just now an affirmation containing a signed copy of an affirmation of the plaintiff.  I of course would take that into account, but the contents are actually unchanged, which I have already considered.

5.The affirmation of the plaintiff purports to give some explanation in seeking the amendment.  However, there is no explanation for the delay in seeking amendment only at the PTR.   The closest that the plaintiff has said is in paragraph 10 of his affirmation that as the case got closer to trial, he had been talking to friends, relatives and the topic about his parents’ estates and he was told apparently by those friends and relatives that his two elder sisters would have a share, and it would not be right for the defendant to intermeddle with the assets which formed part of his father’s estate, and it would not be right for the plaintiff and the defendant to divide that equally just among themselves.

6.Be that as it may, this explanation is far from being a satisfactory explanation for the delay in seeking amendment.  As will be apparent from my reference to correspondence in the analysis below, the plaintiff’s delay was inexcusable.

7.The question of delay and absence of explanation aside, I have considered the draft amendments to the statement of claim.  They can be classified into five heads:

(a) A fresh plea that letters of administration were granted to the mother as administratrix of the father, but that no letters of administration were granted in respect of the mother’s estate;

(b) In paragraph 7 of the statement of claim, the existing plea is that there was a traditional Chinese custom and practice that the male descendants would be entitled to inherit from the father’s estate.  The proposed amendment is that it was the defendant who represented to the plaintiff that there was such a custom and practice;

(c) A fresh plea of money had and received by the defendant to the plaintiff’s use;

(d) A fresh plea that the defendant has intermeddled with the estate of the father and is liable to account as trustee de son tort and given account of what was due to the father’s estate;

(e) A fresh prayer for relief that the plaintiff be appointed as administrator of the mother’s estate.

8.With regard to item (a), the amendment is neutral in itself and is supported by documents which cannot be disputed.  I have considered paragraph 23B of the proposed amendment which refers to the estate of the father of which the plaintiff was one of the four beneficiaries.  As rightly pointed out by Mr Kwok, counsel for the defendant, and conceded by Mr Yip, counsel for the plaintiff, factually this is incorrect because there were five beneficiaries, inclusive of the mother.

9.Subject to the relevance of this plea to the rest of the case, there cannot be any objection to amendment to the first item of amendment with corresponding amendment to paragraph 23B in relation to the number of beneficiaries.

10.With regard to item (b) of the amendment, this is a complete change of stance.  Instead of asserting the existence of a custom, the plaintiff now asserts a representation by the defendant of the custom, and it would entail the filing of fresh evidence on both sides. 

11.With regard to items (c) and (d) of the proposed amendments, they appear to be related.  Even if it can be proved that the defendant has intermeddled with the estate of the father, it should be the father’s administratrix, ie the mother, and due to her demise, her administrators, who should be the proper plaintiff. 

12.While the court does not exclude the situation where a plaintiff as beneficiary can claim against a trustee de son tort, this is not the right position in the present case, because not all the beneficiaries are before this court. 

13.Mr Yip has referred to two cases, Wang Mei Na v Tang Mu Lien HCA 421/2010, 27 January 2011, Deputy Judge L Chan (as he then was) in the Court of First Instance and HCMP 751/2011, 25 January 2013 on appeal.  With respect, those two cases did not deal with the locus of the present plaintiff as a beneficiary to bring a personal claim against the defendant’s brother who is said to be a trustee de son tort.  At least on the face of the case of Wang Mei Na, all the potential beneficiaries to the deceased’s estate were before the court.  The question of locus of the plaintiff was one of the matters for which leave to appeal might have been given in that Court of Appeal case.

14.The question of the plaintiff in this case not being the proper plaintiff aside, Mr Kwok has rightly referred me to previous correspondence between the parties as late as two weeks ago in January 2015.

15.On at least two occasions, at case management conferences before Master Hui, the learned Master had already raised the issue of whether or not the sisters ought to be made parties to the present case.  The correspondence showed that the plaintiff was aware of the need to join the sisters and the need for an order for service out of the jurisdiction of the court, and that if these were done, the PTR and the trial dates might have to be vacated. 

16.As of today, when the plaintiff took out the summons before me, they took an approach rightly described by Mr Kwok as a halfway house.  The summons did not bring in the sisters as parties but purported to make the amendments I have outlined above. 

17.In the course of hearing submissions, I have asked Mr Yip who the defendant should account to if he is proved to be a trustee de son tort. Apparently, this course of correspondence brought to my attention by Mr Kwok has shown to this court that the plaintiff knew their problems in their case and clearly their summons was not properly constituted.

18.Finally, with regard to item (e) of the amendment, there is no reason why this sort of relief should be sought in the present action instead of going by the usual channel of non-contentious probate application for letters of administration in relation to the mother’s estate, or if that failed, by way of a proper administration action. 

19.Having considered these points, I am of the view that even if it can be shown that the defendant were a trustee de son tort who has intermeddled with the father’s estate, the cause of action does not lie with the plaintiff and not all the beneficiaries are before the court to enable the court to grant leave to amend the statement of claim. 

20.Item (a) of the amendment will have no meaning unless the rest of the amendments are allowed.  In the premises, I dismiss wholesale the application for amendment. 

(Discussion re costs)

21.Costs should be to the defendant to be summarily assessed on the papers on 4 February 2015. 

Mr Francis Yip, instructed by Oliver C M Chan & Co, for the plaintiff

Mr Kwok Sui-hay, instructed by Christine M Koo & Ip, for the defendant