Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Fok Po Nam v Hsbc Trustee (Hong Kong) Ltd

Judgment Cited authorities 2 Cited in Precedent Map Related
Vincent
Judgment Date03 January 2018
Neutral Citation[2018] HKCFI 1
Year2018
Judgement NumberHCCA3844/2017
Subject MatterCaveat
CourtCourt of First Instance (Hong Kong)
HCCA3844/2017 FOK PO NAM v. HSBC TRUSTEE (HONG KONG) LTD

HCCA 3844/2017

[2018] HKCFI 1

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CAVEAT NO HCCA 3844 OF 2017

____________

IN THE ESTATE of FOK PO TUN FERDINAND (霍寶敦) late of Flat B, 14th Floor, 5 Babington Path, Hong Kong, deceased (“the Deceased”)
and
IN THE MATTER of Rule 44 of the Non-Contentious Probate Rules (Cap.10A)

____________

BETWEEN
FOK PO NAM Caveator
and
HSBC TRUSTEE (HONG KONG) LTD Person Warning

____________

Before: Hon Chow J in Chambers (Open to Public)
Date of Hearing: 14 December 2017
Date of Handing Down Decision: 3 January 2018

________________

D E C I S I O N

________________

INTRODUCTION

1. The following issues arise for determination under the summons for directions taken out by the Caveator:-

(1) whether a person must have an interest in the estate of the deceased to justify the entering of a caveat by that person; and

(2) whether the court should, in any event, give the directions sought by the Caveator in the present case.

BASIC FACTS

2. Fok Po Tun Ferdinand, deceased (“the Deceased”), a widower, died on 27 December 2016 at the age of 85. He was survived by a son and a daughter. He had three brothers, namely, Fok Po Shun (“Po Shun”), Fok Po Nam (“Po Nam”) and Fok Po Kai (“Po Kai”) (hereinafter collectively referred to as “the Fok Brothers”), and a nephew called Thomas (a son of Po Shun).

3. Prior to his death, the Deceased used to live at Flat B, 14th Floor, 5 Babington Path, Hong Kong (“the Apartment”), which he purchased in or about 1974. He gave each of his brothers a set of keys to the Apartment, so that (i) he could come to one or the other of them whenever he locked himself out of the Apartment, and (ii) the domestic helpers employed by Po Shun or Thomas could enter the Apartment to render assistance in relation to his daily living needs and activities.

4. By a will of the Deceased dated 14 August 2003 (“the Will”), the Deceased appointed HSBC International Trustee Limited (“HSBC International”) as the executor and trustee of the Will.

5. On 7 July 2017, HSBC Trustee (Hong Kong) Limited (“HSBC Trustee”), as lawful attorney of HSBC International, applied to the Court of First Instance of the High Court for a grant of letters of administration (with the will annexed) of the Estate of the Deceased.

6. On 28 July 2017, Po Nam (the Caveator) entered a Caveat in the Probate Registry against the sealing of any grant in relation to the Estate of the Deceased without notice to him.

7. On 19 September 2017, HSBC Trustee (the Person Warning) issued a Warning to Po Nam requiring him to (i) enter an appearance setting forth what interest he had in the Estate of the Deceased contrary to that of HSBC Trustee, or (ii) issue and serve a summons for directions if he had no contrary interest but wished to show cause against the sealing of a grant to HSBC Trustee.

8. On 29 September 2017, Po Nam entered an Appearance to Warning, stating that he had no interest contrary to the Person Warning (ie HBSC Trustee) but wished to show cause why letters of administration with the will annexed of the Estate of the Deceased limited to the part of the Estate comprising the Deceased’s residence at the Apartment and the contents therein should not be granted to HSBC Trustee.

9. On the same date, ie 29 September 2017, Po Nam issued a summons for directions (“the Summons for Directions”).

THE DIRECTIONS SOUGHT BY PO NAM

10. According to Po Nam, he and his brothers do not, and have no reason to, challenge the Will (see paragraph 5 of Po Nam’s first affidavit filed on 11 October 2017). It is clear, however, from the stance that he has adopted in these proceedings that he does not admit the Will to be the last will of the Deceased. Pausing here, I should mention that Po Nam has not produced any subsequent (or, for that matter, prior) will made by the Deceased. Neither is there any evidence before the court of the existence of any other will of the Deceased. In any event, the issue of whether the Will is the last will of the Deceased is not an issue which requires determination in the present application.

11. Significantly, Po Nam does not claim to have any interest in the Estate of the Deceased. In his own words:-

“None of us [ie the Fok Brothers] expect to be a beneficiary of the Deceased’s estate. Nor have we any claim against the estate, other than a claim by Po Shun for reimbursement of expenses relating to (a) the Deceased’s funeral and (b) the Apartment.”

12. According to Po Nam, his “interests” in relation to the Estate of the Deceased, or its administration, lie in two matters:-

(1) He does not wish to hold on to the keys to the Apartment and is eager to hand them over to whoever is the lawful personal representative of the Deceased. He believes it to be his duty as “gratuitous bailee” and/or “constructive trustee” of the Apartment to hand over those keys, in accordance with the law and in a manner sufficient to safeguard and preserve such assets of the Estate as are inside the Apartment, and is concerned to ensure that he does not incur any criminal or civil liability in relation to the Apartment or its contents (see paragraph 6 of Po Nam’s first affidavit).

(2) The Deceased had a valuable stamp collection, and at least “some of his stamps had at some point in time been kept in the Apartment”. He is unable to say whether the entirety of the Deceased’s stamp collection was in the Apartment at the time of his death, or the value of such stamps as were so located. Nevertheless, he wishes to draw the lawful personal representative’s attention to the “likely existence of some rare stamps whose true value, due to their miniature size, featherweight and unattractive looks, could easily be overlooked, underestimated, mislaid or even misappropriated” (see paragraphs 20 and 21 of Po Nam’s first affidavit).

13. In the Summons for Directions, Po Nam seeks the following directions:-

(1) letters of administration with the will annexed of the Estate of the Deceased should not be granted to HSBC Trustee, unless it compiled with the Warning Notice in Probate Form N4.1 and Section 60J of the Probate and Administration Ordinance, Cap10 (“the PAO”) limited to the Deceased’s residence at the Apartment and its contents therein; and

(2) in the event HSBC Trustee fails to take an inventory of the contents in the Apartment in compliance with the aforesaid Warning Notice and Section 60J and in the manner as per the Schedule attached to the summons within 7 days, letters of administration with the will annexed limited to the Apartment and its contents therein be granted to such fit and proper person as the court deems fit.

14. The “Schedule for Taking Inventory” annexed to the Summons for Directions sets out a list of 9 proposed directions, as follows:-

“1. The person warning (‘PW’) shall within seven days produce to the Caveator a full copy of the Will without redaction.

2. PW shall within seven days produce to the Caveator, sufficient proof, that the Executor named in the Will is legally competent to act as executor and trustee in Hong Kong notwithstanding the Executor so named has ceased maintaining a business address in Hong Kong since 2009 and its name is not in the Register of Trustee Companies in Companies Registry of Hong Kong.

3. PW shall, after complying with 1 and 2 above, agree and fix with the Caveator a mutually convenient time and date for inspection of the apartment of the Deceased (‘Inspection’) – namely, Flat B, 14th Floor, 5 Babington Path, Hong Kong, deceased (‘the Apartment’) – and for taking an inventory of the contents of the Apartment (‘Inventory’), in the presence of the Caveator and/or his representative to ascertain whether the Deceased had left any other Will or testamentary instruments and/or details of the Deceased’s assets in the Apartment.

4. PW shall, so soon as practicable, request for and procure the return to the Caveator by the daughter of the Deceased – namely, NG Kah Yee Brenda (‘the Daughter’) – all items which the Daughter removed from the Apartment on or shortly after the Deceased’s date of death (that is to say, 27 December 2016), including but not limited to a stack of papers and a notebook bearing or containing the Deceased’s handwriting; and PW shall include all such items in the inventory.

5. Not more than 2 representatives with written authorization from PW shall be allowed entry to the Apartment on the appointed day for the Inspection and taking of Inventory.

6. A philatelic expert be appointed, by agreement between PW and the Caveator: to attend the Apartment on the appointed day for the Inspection and taking of Inventory; to assist in the Inspection, and in itemizing and listing out of the philatelic collection belonging to the Deceased for inclusion in the Inventory; and to prepare a written valuation of the said philatelic collection of the Deceased.

7. The Inventory, when completed, shall be signed by the representatives of PW attending the Inspection and countersigned by the Caveator, and a copy of the Inventory so signed and countersigned by given to the Caveator.

8. PW shall include the Inventory so taken and signed and countersigned in its application for grant of probate, annexing the Inventory to the grant.

9. At and after the taking of Inventory, PW shall make and provide arrangements, satisfactory to the Caveator and at the cost of the Deceased’s estate, to safeguard and preserve the Apartment andall asses therein, including but not limited to the taking out of appropriate and adequate insurance.”

15. HSBC Trustee opposes the directions sought by Po Nam on two...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT