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HCMP1709/2007
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 1709 OF 2007
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IN THE MATTER of sections 33 and 56 of Probate and Administration Ordinance, Cap.10 |
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and |
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IN THE MATTER of Order 85 of the Rules of High Court, Cap.4 |
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and |
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IN THE MATTER of the Estate (“the Estate”) of Lee Da Kor (李大可), Deceased (“the Deceased”) |
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BETWEEN
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LEE CHARLES (李揚波) |
Plaintiff |
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and |
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LEE YAN CHUN (李揚真)
(as one of the executors, trustees and beneficiaries of
the estate of LEE DA KOR (李大可), Deceased) |
1st Defendant |
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LI YEUNG TAK LUGEE (李揚德)
(as one of the executors and trustees of the estate of
LEE DA KOR (李大可), Deceased; and as personal
representative of the estate of NG MING FUNG (吳日芳),
Deceased) |
2nd Defendant |
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LEE ANNIE YEUNG NING (李揚寧)
(as one of the executors and trustees of the estate of LEE DA KOR (李大可), Deceased) |
3rd Defendant |
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WONG YU CHING (黃如貞)
(as one of the beneficiaries of the estate of LEE DA KOR (李大可), Deceased) |
4th Defendant |
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LEE YEUNG CHUEN (李揚川)
(as one of the beneficiaries of the estate of LEE DA KOR (李大可), Deceased) |
5th Defendant |
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LEE YEUNG KONG (李揚江)
(as one of the beneficiaries of the estate of LEE DA KOR (李大可), Deceased) |
6th Defendant |
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LEE YAU FUN CINDY (李幼芳)
(as one of the beneficiaries of the estate of LEE DA KOR (李大可), Deceased) |
7th Defendant |
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LI YEUNG HING (李揚卿)
(as one of the beneficiaries of the estate of LEE DA KOR (李大可), Deceased) |
8th Defendant |
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LEE DIANNA YEUNG CHU (李揚珠)
(as one of the beneficiaries of the estate of LEE DA KOR (李大可), Deceased) |
9th Defendant |
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Before : Hon Poon J in Chambers
Date of Hearing : 14 December 2009
Date of Judgment : 14 December 2009
Date of Reasons for Judgment : 28 December 2009
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REASONS FOR JUDGMENT
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Introduction
1. On 14 December 2009, I allowed the plaintiff’s application for (a) an order directing the 1st to 3rd defendants as executors of the will of Mr Lee Da Kor (“Mr Lee”) dated 18 December 2001 (“the Will”) to provide inventory and account of the estate; (b) a declaration that the deed dated 8 June 2004 (“the Deed”) is valid and enforceable with consequential directions; and (c) an order removing the executors and appointing Mr Leung Chi Hung (“Mr Leung”), accountant, to replace them. I also ordered costs against the executors personally.
2. I had indicted that I would give the reasons for judgment in writing, which I now do.
3. The background leading to these proceedings may be summarized as follows.
The Will and the Deed
4. Mr Lee had a big family. He bore the 1st, 2nd, 5th to 8th defendants with Madam Ng Ming Fung (“Madam Ng”), now deceased; the 3rd defendant with the 4th defendant; and the plaintiff and the 9th defendant with a Madam Fan.
5. Mr Lee died on 18 May 2004. Pursuant to the Will, the 1st to 3rd defendants were appointed as executors and trustees. Mr Lee bequeathed his estate as follows :
(1) Madam Ng, the 2nd defendant, the 3rd defendant and the plaintiff shall be given 10,000, 13,940, 22,500 and 15,000 of Mr Lee’s shares in Dowell Trading Company Limited (“Dowell”) respectively.
(2) His residuary estate shall be divided into nine equal shares and distributed to the plaintiff, Madam Ng, and the 1st, 4th to 9th defendants.
6. About one month prior to his death, Mr Lee transferred the 15,000 shares in Dowell which were to be given to the plaintiff under the Will to the 4th defendant as a gift. As a result of this, the plaintiff and the other eight beneficiaries under the Will entered into the Deed, varying the dispositions under the Will (“the Deed”). The parties also entered into two other deeds for the same purpose.
7. As set out in the Deed, the deceased had at the time of his death accounts in Canadian currency in the Royal Bank of Canada in Vancouver, British Columbia, Canada (“the Canadian Accounts”), which formed part of the residuary estate. Pursuant to the Deed :
“1. Each of the Beneficiaries hereby conveys and assigns unto the [plaintiff] all of his or her respective share, benefit, estate and interest in that portion of the residuary estate of the Deceased which consists of [Canadian Accounts] and hereby covenants to hold all the monies in the [Canadian Accounts] (‘the Monies’) unto the [plaintiff] absolutely;
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5. Each of the Beneficiaries hereby covenants each other and with the [plaintiff] that he or she would procure the Executors of the Will of the Deceased to :
(a) Confirm this Deed as soon as practicable upon obtaining a grant of the Will of the Deceased in Hong Kong;
(b) Release all [the Monies] to the [plaintiff] as soon as practicable after obtaining a grant of the Will of the Deceased in the Province of British Columbia and upon retaining sufficient monies from [Canadian Accounts] for payment of taxes, fees, assessments and duties as aforesaid but in any event, not alter than 6 months after obtaining a grant of the Will in Canada.”
8. Probate was eventually granted on 4 January 2007.
The present proceedings
9. It is the plaintiff’s case that after Mr Lee’s death, he had repeatedly made inquiries as to the progress and steps taken by the executors to release the Monies to him and pressed for a full and accurate account of the estate with inventory but to no avail.
10. On 10 September 2007, the plaintiff commenced the present proceedings pursuant to Order 85 of the Rules of the High Court (“RHC”) and sections 33 and 56 of the Probate and Administration Ordinance (Cap.10) (“PAO”). Initially, he only sought an order for account against the executors. On 30 September 2008, Sakhrani J granted him leave to amend the originating summons to add the other defendants (including the 2nd defendant in her capacity as the personal representative of Madam Ng’s estate) and to seek additional relief for the Deed and removal of the executors.
The parties’ position
11. The matter came before me on 14 December 2009. The plaintiff was represented by Ms Tong; the 1st to 3rd defendants, Mr Lin. The 1st to 3rd defendants opposed the application for account and removal. They remained neutral for the application about the Deed.
12. The 4th defendant appeared in person although she had not filed any acknowledgment of service. She told the court that she regarded the Deed and binding and enforceable and that she adopted a neutral position for the removal of the executors.
13. The other defendants are all absent. From previous correspondence, it is clear that neither the 5th and 6th defendants, legally represented, nor the 9th defendant, acting in person, opposed the plaintiff’s claim. The 7th and 8th defendants had not filed any acknowledgment of service.
14. As indicated above, I allowed the plaintiff’s application with costs against the 1st and 3rd defendants personally.
15. I will deal with the relief sought by the plaintiff in turn below.
Duty to account
16. The applicable principles are well established.
17. It is the duty of an executor to keep clear and accurate accounts, and to be always ready to render such accounts when called upon to do so : see Halsbury’s Laws of Hong Kong, 2008 Re-Issue, Vol.27, para.425.897. In order to provide a true and perfect account, the executor must provide details of the whereabouts of all properties (including cash) which he is bound to administer : see Edwin Kwok Wing Yun v Lee Shuk Yee, HCMP3904/2001, unreported, 7 June 2002, per Chung J at para.19.
18. Further, under section 56 of PAO, personal...
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