Leung Kit Hing, Doris v. Cho Sik Han Yvette and Another

CACV 67/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 67 OF 2013

(ON APPEAL FROM HCMP NO. 1455 OF 2010)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.This is an appeal from the decision of L Chan J of 13 March 2013. By that decision, the learned judge dismissed an appeal against the decision of Master Levy of 10 August 2012 striking out the originating summons of the Applicant in HCMP 1455 of 2010. By that originating summons, the Applicant sought the following relief:

“1. To seek leave and to apply to revoke the Grant No. HCAG002295/98 under S.33 Cap 10;

2. To apply as Joinder of Administrator under Rule 23 Cap 10A and/or

3. To apply as General Administrator subject to the immediate control of the court and act under the Court’s direction under s.40 Cap 10.”

2.The master struck out the originating summons on the basis that the application was hopeless and vexatious since the Applicant did not have any beneficial interest in the estate.  The judge upheld that decision.  At paragraph 7 of his judgment, he said:

“ I think the applicant has taken a wrong view of rule 21 of the NCPR. Rule 21 provides for the priority of entitlement to grant for persons having a beneficial interest in the estate. Since the deceased was survived by his wife and two sons, the three of them would be entitled to the whole estate under section 4(3) of the Intestates’ Estates Ordinance, Cap 73. The two sisters of the deceased therefore did not have any beneficial interest in the deceased’s estate. I do not regard the applicant’s desire to assist or protect the interests of her two nephews (the sons of the deceased) as a beneficial interest in the deceased’s estate. The applicant thus enjoyed no priority to grant under rule 21.”

3.And at paragraph 15, the judge said:

“ In any case, the applicant has no right to ask to be joined as a co-administrator of the deceased’s estate. She does not have any locus standi to apply to be appointed a co-administrator. She also cannot invoke section 33 of the PAO to revoke the grant as she is not a party interested in the deceased’s estate. She also has not demonstrated any basis for her to be appointed an administrator pendente lite.”

4.The judge set out fully the background relating to the application in his judgment of 13 March 2013.  For present purposes, it suffices for us to repeat what had been said in the judgment of this court on 18 September 2014, paragraphs 1 and 2:

“ 1. On 30 July 2010, the applicant took out an originating summons in HCMP 1455 of 2010 seeking the revocation of grant No HCAG002295 of 1998. The grant was issued in respect of the estate of Leung Yun-sang, Wilson (deceased), who passed away in 1995. The deceased died intestate. By that grant, the widow of the deceased Cho Sik-hang and her sister Cho Sik-yung were appointed as co-administratrix of the estate. The appointment of co-administratrix is necessary because there were infant interest. The deceased and the widow had given birth to 2 sons who were still minors at the time of grant. Since then, both sons have reached majority.

2. The applicant was the sister of the deceased.  Since the deceased was survived by his widow and two sons, she has no beneficial interest in the estate under the Intestates’ Estates Ordinance Cap 73.  Notwithstanding that, some 15 years after the passing away of the deceased and 12 years after the issue of the grant, she took out this summons for revocation of grant.  …”

5.Initially, the Applicant did not join the administratices as parties to this appeal.  By the decision of this court on 18 September 2014, they were joined as necessary parties and the Applicant was directed to serve the papers on them.

6.Before we deal with the substantive appeal, we need to address two summonses.  First, Madam Cho, the widow and one of the administratrices, issued a summons on 13 May 2015.  She did not seek any specific relief in the summons.  Instead, she sought to produce before this court a copy of the grant and a letter signed by the two sons dated 10 May 2015 stating that they had not authorized the Applicant to proceed with this appeal.  An affirmation was also filed by Madam Cho producing these documents as exhibits.  

7.The Applicant filed an affidavit in response to this summons on 18 May 2015.  Basically, the contents of this affidavit were submissions.  At paragraph 7, the Applicant said she had never pleaded in her pleadings that the 2 sons had authorized her as their representatives.  She said she only applied under Rule 31 of the Non-Contentious Probate Rules [“NCPR”] in her capacity as sister of the deceased. At the hearing before us, the Applicant confirmed to us that she only applied in her capacity as sister of the deceased and she did not represent the 2 sons.   

8.However, it is quite clear that the Applicant had advanced submissions at various stages that she sought to have herself appointed as co-administratrix in order to protect the interests of the 2 sons.  Thus, the courts have to deal with such contentions in the judgments, see paragraph 7 of the judgment of L Chan J and paragraphs 15 to 17 of the judgment of this court on 18 September 2014.  The Applicant had included the document of 1 March 2006 which she called the implied nomination granted by the 2 sons to her in the Appeal Bundles for this appeal.  In her affidavits of 7 November 2014, 22 April 2015 and her summonses of 23 April 2015, the Applicant saw fit to put down the names of the two sons in the title of the proceedings.  It is thus understandable that Madam Cho deemed it necessary to set the record straight by producing the letter of 10 May 2015 for this court’s information.     

9.In light of the stance of the Applicant at paragraph 7 of her affidavit of 18 May 2015 and what she said at the hearing of 5 June 2015, she is no longer maintaining that she has the authority of the 2 sons to pursue these proceedings, there is no need to make any order regarding the production of the letter of 10 May 2015. 

10.As regards the grant, for reasons already set out in the judgments of this court on 18 September and 20 October 2014, it is necessary to have it before the court in an application of this nature. 

11.The second set of summons comprises of 2 summonses taken out by the Applicant on 23 April 2015.  As far as we can gather from the confusing contents of these summonses, the Applicant sought leave to adduce further evidence in this appeal, including some evidence which she sought to place before us as “privileged documents not to be disclosed” to the administratrices. 

12.The key issue in this appeal is whether the judge (and the master) was correct in holding that the Applicant had no interest in the estate and as such no locus to make the applications in the Originating Summons.  The so-called new evidence, apart from many pages of what are essentially arguments (thus not proper subject for evidence), cannot shed further light on this key issue.  They are simply irrelevant for the purpose of this appeal.  We refuse to grant leave to the Applicant to refer to these additional materials and dismiss the 2 summonses of 23 April 2015.

13.On 18 May 2015, the Applicant wrote to the court to seek an adjournment of the appeal due to the need to deal with the summons of Madam Cho.  This court directed that the application would be considered at the hearing on 5 June.  In view of what had been said above regarding that summons and the implications of that on the appeal, we do not see any valid ground for adjourning the appeal. The Applicant did not pursue her application for adjournment on 5 June 2015.

14.Since the deceased died intestate leaving a widow with 2 sons, his estate was to be distributed in accordance with section 4(3) of the Intestates’ Estates Ordinance Cap 73 [“IEO”].  The Applicant, as sister of the deceased, did not have any interest in the estate. 

15.The Applicant claimed that she was a party “with vesting interests” under sections 4 and 5 of the IEO.  It is very difficult to follow her arguments.  She seems to suggest that as the 2 sons had an interest in the estate which would be held on statutory trust for them, she as their aunt could somehow have locus to apply to become a co-administratrix.  She also contended that the appointment of Cho Sik-yung as co-administratrix with the widow was wrong due to conflict of interest. 

16.At the hearing, the Applicant referred to s 4(5) of the IEO to support her claim of having an interest. However, as she accepted that this is not a case where the deceased left no surviving spouse, s 4(5) is not applicable.   She also claimed that she could apply for grant under Rule 31 of the NCPR and section 40 of the Probate and Administration Ordinance [“PAO”] Cap 10.

17.We cannot accept her submissions.  The fact that the 2 sons were minors at the time of grant does not give the Applicant any beneficial interest in the estate.  Nor does it give her any right to be appointed as co-administratrix.  Section 36 of the PAO makes it clear that the power to appoint administratrix is a discretionary power.  Though the NCPR contains provisions which would govern generally the order of priority for grant in case of intestacy and the situation of minority interests, ultimately the Registrar must exercise the power having regard to s 36 to appoint such person “as the court thinks fit”. The provisions in the NCPR do not give any person any right to be appointed as co-administratrix.

18.In the present case, we are not concerned with the appointment when the grant was issued.  That happened a long time ago in 1998.  There was no appeal against that grant.   What we are concerned with is the application by the Applicant in 2010 for the grant to be revoked or alternatively for her to be appointed as co-administratrix.  At the hearing before us, the Applicant invited us to focus on the latter.  But the result is the same.  By 2010, both sons had come of age and there was no basis for the Applicant to claim that she should be appointed as an additional administratrix to safeguard their interests.

19.The Applicant said that in 2010, the younger son was 19 years old and she was therefore entitled to apply under Rule 31 of the NCPR. Rule 31 applies to a situation “where a person to whom a grant would otherwise be made is under the age of 21 years”. Rule 31 is included in the NCPR to regulate the practice and procedure regarding an application under section 39 of the PAO and they should be read together. They deal with situation where a testator by his will appoints a person under 21 to be his executor. It has no application in the present case.

20.The relevant statutory provision governing appointment of co-administrators in case of minority interest is section 25 of the PAO. The section refers to minority interest without specifying the age. In 1990, the Age of Majority (Related Provisions) Ordinance [“AMO”] Cap 410 was enacted. Section 2(1) of that ordinance provides,  

“As from the commencement of this Ordinance a person shall attain full age on attaining the age of 18 years.”

21.Thus, by 2010, both the elder and younger sons had attained majority and there was no minority interest being involved. According to Madam Cho, she tried her best in bringing up the two sons after the demise of her husband and she has all along maintained a good relationship with her sons.  The elder son was in court at the hearing of 5 June 2015 when these were said. As it has been repeatedly said in the judgments, the 2 sons have full capacity to make decision for themselves. If they do not wish to take issue with the administratrices in the administration of the estate, it is no business of the Applicant to get involved.   As mentioned, the Applicant was constrained to accept that she did not have their authority to proceed with these proceedings in light of the letter of 10 May 2015. 

22.There is also no basis for the Applicant to rely on s 40 of the PAO. She did not have the requisite interest to commence the proceedings specified in that section.

23.The Applicant also referred to Rule 23 of the NCPR and Section 25 of the PAO. Given that she has no interest in the estate and she could not be said to act on behalf of a minor who has an interest in the estate, those provisions cannot assist her.

24.Therefore, the judge was clearly right in holding that the Applicant had no locus to apply for her own appointment as co-administratrix.  The judge was also correct in holding that she did not have the right to make an application for revocation of grant in view of her lack of interest in the estate.

25.The appeal must be dismissed.  As the two respondents do not ask for costs, we make no order as to costs.

26.Before we leave this matter, we wish to invite attention to the apparent incongruity between the age specified in Section 39 of the PAO and Rule 31 of the NCPR on the one hand and the age of majority prescribed by AMO on the other. There may or may not be good reasons for justifying a higher age qualification for taking up a grant. However, as we said above, since section 2(1) of the AMO has lowered the age of majority to 18, there must be some additional justification for retaining 21 as the age qualification under Section 39. We shall send a copy of this judgment to the Registrar (who is in charge of the Probate Registry) for the matter to be studied further. But for reasons set out above, this has nothing to do with the Applicant.

The Applicant appeared in person.

The 1^st and 2^nd respondents appeared in person.