Lee Kwai Tai (李桂娣) Also Known As Li Kwai Tai v Chan Tsui Shan (陳翠珊) Representing The Estate Of Lee Kwai Tai (李桂娣) Also Known As Li Kwai Tai, Deceased

CourtCourt of Final Appeal (Hong Kong)
Judgment Date11 Mar 2020
Neutral Citation[2020] HKCFA 4
Citation(2020) 23 HKCFAR 116
Judgement NumberFACV7/2019
SubjectFinal Appeal (Civil)
FACV7/2019 LEE KWAI TAI (李桂娣) also known as LI KWAI TAI v. CHAN TSUI SHAN (陳翠珊) representing the estate of LEE KWAI TAI (李桂娣) also known as LI KWAI TAI, Deceased

FACV No. 7 of 2019

[2020] HKCFA 4

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2019 (CIVIL)

(ON APPEAL FROM CACV NO. 346 OF 2018 AND CAMP NO. 65 OF 2018)

_________________________

BETWEEN
LI CHEONG (李昌) Plaintiff
and
LEE KWAI TAI (李桂娣)
also known as LI KWAI TAI
Defendant
(Respondent)
and
LI SOO TAN (李素丹)
also known as LEE SOO TAN DOREEN
Intended Intervener
(Appellant)
AND BETWEEN
LI CHEONG (李昌) Plaintiff
and
CHAN TSUI SHAN (陳翠珊) representing the estate of LEE KWAI TAI (李桂娣) also known as LI KWAI TAI, Deceased Defendant
(Respondent)
and
LI SOO TAN (李素丹)
also known as LEE SOO TAN DOREEN
Intended Intervener
(Appellant)

(By order of the Honourable Mr. Justice Cheung, Permanent Judge of

the Court of Final Appeal dated 21st October 2019)

_________________________

Before: Mr Justice Ribeiro PJ, Mr Justice Fok PJ,
Mr Justice Cheung PJ, Mr Justice Tang NPJ and
Mr Justice Spigelman NPJ
Date of Hearing and Judgment: 9 January 2020
Date of Reasons for Judgment: 11 March 2020

________________________

REASONS FOR JUDGMENT

________________________

Mr Justice Ribeiro PJ:

1. I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

Introduction

2. As will be explained in more detail below, this appeal arises from the exercise of discretion by a judge to permit the appellant to acknowledge service in a probate action out of time and to apply to set aside the judgment he had earlier entered in that action.[1] The Court of Appeal held that the judge had erred in the exercise of his discretion and that it was therefore necessary for that court to exercise the discretion afresh.[2] In the re-exercise of that discretion, the Court of Appeal refused to permit the late acknowledgment of service by the appellant and therefore set aside the judge’s order.

3. This appeal raises a short point, namely whether there were grounds for the Court of Appeal to interfere with the exercise of discretion by the Deputy High Court Judge and to exercise that discretion afresh as it did.

4. At the hearing of the appeal, having heard counsel for the appellant, we dismissed the appeal without calling on counsel for the respondent. We indicated that we would provide our reasons for dismissing the appeal at a later date. These are my reasons for doing so.

The limited ambit of the appeal

5. It is rightly accepted by the parties that there are limited grounds on which an appellate court can interfere with a lower court’s exercise of discretion. Those principles are set out in the decision of the House of Lords in Hadmor Productions Ltd and Others v Hamilton and Another,[3] which have been consistently applied in Hong Kong courts: see, e.g. the decision of this Court in SPH v SA.[4]

6. The appellant, the intended intervener in the probate action, also accepts that, if the Court of Appeal were entitled to exercise the discretion afresh, there is no ground on which this Court could interfere with the Court of Appeal’s exercise of that discretion to decline to permit the acknowledgment of service out of time.[5]

7. Therefore, the sole issue on the appeal is whether the Court of Appeal was right to conclude that the judge’s exercise of discretion miscarried.

The interlocutory procedural history of the probate action

8. By writ dated 12 December 2012, the plaintiff, Li Cheong, commenced a probate action (“the 2012 Action”)[6] in respect of Sang Lee, also known as Li Tin Sang (“the deceased”), who had died in England on 22 February 1985. The plaintiff asserted that the deceased died leaving no wife, no issue and no surviving parents and that he was the lawful and natural nephew of the deceased and entitled to share in his estate on intestacy.

9. The defendant to that action (who was respondent to this appeal) was Lee Kwai Tai, also known as Li Kwai Tai (“LKT”), who claimed to be the only issue of the deceased and his only beneficiary.[7] In her Defence and Counterclaim dated 14 January 2013, LKT asserted that she was the sole surviving issue of the deceased and sought the grant of letters of administration in respect of the deceased’s estate. The plaintiff joined issue with the Defence and Counterclaim in his Reply and Defence to Counterclaim dated 18 March 2013.

10. On 22 September 2015, the 2012 Action came on for trial but was adjourned by Deputy High Court Judge Yee (“the Deputy Judge”) so that the parties could obtain DNA samples and prepare a report.

11. Two days after that, on 24 September 2015, Messrs Kelvin Cheung & Co. (“KCC”), acting on behalf of the appellant (“DL”), entered a Caveat in respect of the deceased’s estate. The Caveat was issued[8] in accordance with Rule 44 of the Non-Contentious Probate Rules (Cap.10A) which enables a party “who wishes to ensure that no grant is sealed without notice to himself”. The letter enclosing the Caveat, dated 25 September 2015, included the action number of the probate action in the heading, indicating that KCC were aware of the 2012 Action.

12. On 7 December 2015, LKT issued a Warning to Caveator and, on 18 December 2015, DL issued an Appearance to Warning. With that Appearance to Warning, DL’s solicitor filed an affirmation stating that DL was resident in Singapore and exhibiting photocopies of a Singapore birth certificate showing her birth in 1946 and her father’s name as “Li Sang” and a registration document of “Lee Sang” issued by the Consulate General of the Republic of China in Singapore in 1948, stating that he was the father of the appellant and also a son, Lee Tung Ngoh. DL’s solicitor asserted in his affirmation that DL claimed to be the sole beneficiary of the estate of the deceased.

13. Having been alerted to DL’s interest in the estate, LKT’s solicitors served a notice of the 2012 Action on KCC on 12 January 2016. Leave to do so had not been obtained, so on 14 January 2016 LKT’s solicitors wrote to KCC to indicate that LKT would first seek leave to serve this notice as required under the Rules of the High Court (“RHC”).

14. The relevant rule is O.15 r.13A, which, so far as material, provides as follows:

“(1) At any stage in an action to which this rule applies, the Court may, on the application of any party or of its own motion, direct that notice of the action be served on any person who is not a party thereto but who will or may be affected by any judgment given therein.

(2) An application under this rule may be made ex parte and shall be supported by an affidavit stating the grounds of the application.

(3) …

(4) A person may, within 14 days of service on him of a notice under this rule, acknowledge service of the writ or originating summons and shall thereupon become a party to the action, but in default of such acknowledgment … he shall be bound by any judgment given in the action as if he was a party thereto.

(5) …

(6) This rule applies to any action relating to –

(a) the estate of a deceased person; …”.

15. On 1 February 2016, LKT’s solicitors wrote to the court informing it of DL’s Caveat and, on 22 February 2016, leave was granted to her to file and serve notice of the 2012 Action on DL pursuant to O.15 r.13A. A Notice of Action in respect of the 2012 Action was duly filed on 18 March 2016 and, on 21 March 2016, LKT’s solicitors served the notice, together with copies of all the pleadings in the action, on KCC. A receipt chop was affixed by KCC on a copy of the Notice of Action retained by LKT’s solicitors.

16. Notwithstanding service of the Notice of Action, no acknowledgment of service was filed by DL. As will be seen, this was to have significant consequences for DL when judgment was entered for LKT in the 2012 Action.

The separate proceedings commenced by the appellant

17. For reasons unexplained, on 26 May 2016, DL commenced another action in respect of the deceased’s estate. That action was HCAP 10 of 2016 (“the 2016 Action”) in which DL was plaintiff and the defendants were Li Cheong (plaintiff in the 2012 Action) and LKT. The Statement of Claim in the 2016 Action referred to the 2012 Action as a pending action, denied that LKT was the natural or lawful daughter of the deceased and claimed that DL is the only surviving issue of the deceased.

18. The Statement of Claim was not verified by a statement of truth from DL and, as Yuen JA noted below, [9] was therefore liable to be struck out under O.41A r.6 of the RHC.[10] Moreover, the action was wholly redundant, since DL could, and should, have asserted her claim to the deceased’s estate by joining in the 2012 Action, as she had been invited to do.

Trial of the 2012 Action

19. Be that as it may, the trial of the 2012 Action resumed before the Deputy Judge on 8 June 2016. The plaintiff, Li Cheong, did not attend. On 1 June 2016, LKT’s solicitors wrote to the court to inform it of the 2016 Action, enclosing correspondence relevant to that action indicating that, although they had informed DL’s solicitors that they were authorised to accept service, the writ in the 2016 Action had not been served on them.

20. The Deputy Judge proceeded with the trial of the 2012 Action on 8 June 2016. In the absence of the plaintiff, the Deputy Judge dismissed his claim and, after hearing the evidence in support of LKT’s counterclaim,[11] declared that the deceased had died intestate and that LKT was “the only surviving issue of the deceased”, and made a grant of letters of administration in favour of LKT (“the Judgment in the 2012 Action”).

21. In the course of the trial, LKT’s then counsel, Mr Kevin Poon, informed the Deputy Judge of the 2016 Action and of the contents of DL’s claim. However...

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