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Zhao Shaoyuan, The Executrix Of The Estate Of Pun Hok Chi, Deceased v Chan Mee Lin

Judgment Cited authorities 8 Cited in Precedent Map Related
Vincent
Judgment Date26 July 2018
Neutral Citation[2018] HKCFI 1724
Year2018
Judgement NumberHCMP855/2018
Subject MatterMiscellaneous Proceedings
CourtCourt of First Instance (Hong Kong)
HCMP855/2018 ZHAO SHAOYUAN, the executrix of the Estate of PUN HOK CHI, Deceased v. CHAN MEE LIN

HCMP 855/2018

[2018] HKCFI 1724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 855 OF 2018

______________________

IN THE MATTER OF PUN HOK CHI, deceased

______________________

BETWEEN
ZHAO SHAOYUAN (趙紹元), the executrix of the Estate of PUN HOK CHI, Deceased Plaintiff
and
CHAN MEE LIN (陳美蓮) Defendant

______________________

Before: Hon B Chu J in Chambers
Date of Hearing: 18 July 2018
Date of Judgment: 26 July 2018

___________________

J U D G M E N T

___________________

Introduction

1. The dispute between the parties is essentially which of them should be allowed to have possession of the body of the late Mr Pun Hok Chi, deceased (“Deceased”) and to arrange for his burial. The Deceased passed away on 2 April 2018.

2. At the ex parte on notice hearing before Lok J on 8 June 2018, he made an order that the originating summons be adjourned to an early date for substantive argument, upon the parties’ undertaking not to deal with the body of the Deceased and funeral arrangements for the Deceased until the disposal of the originating summons.

3. The parties’ respective cases were summarised by Lok J at the time to be as follows:

(i) P, the Deceased’s cohabitant, wishes to have the Deceased’s body buried and interred at the Mirs Bay Overseas Chinese Cemetery located in Shenzhen in Mainland China (“Cemetery”);

(ii) D, the Deceased’s surviving spouse, wishes to have the Deceased’s body cremated and to have his ashes kept in Hong Kong.

4. On 4 July 2018, D issued a summons seeking relief mirroring those sought by P in the OS (“D’s Summons”). There was also an alternative claim in D’s Summons for an order that the Pamela Youde Nethersole Eastern Hospital (“Eastern Hospital”), as the person in lawful possession of the Deceased’s body, be authorised to make appropriate arrangements for the disposal of the body.

5. After the hearing before Lok J, the parties had attended mediation but unfortunately this failed.

6. On 9 July 2018, D’s solicitors sent to P’s solicitors an open proposal and without prejudice to D’s position, proposing, amongst other things, that:

(i) The funeral to be arranged by D as Deceased’ surviving spouse;

(ii) D will not insist on Deceased’s body being cremated until any future dispute over the validity of Deceased’s last will is resolved, and the Deceased’s body to be interred in the meantime in Hong Kong and that there are grave spaces ready and available at the Chinese Permanent Cemeteries in Chai Wan and Tseung Kwan O.

7. The above proposals were not accepted by P.

Background

8. D first met the Deceased in 1980 and they were subsequently married in Hong Kong on 25 February 1982. There were two children of the family, namely PYYA, a daughter now aged 35, and PSM, a son now aged 29. D herself works for the Hospital Authority of Hong Kong.

9. The Deceased had been working for the Cemetery in Mainland China for the past 30 odd years and his last position at the Cemetery was the Cemetery Director.

10. It was D’s case that throughout their marriage, the Deceased stayed with her in Hong Kong over weekends, namely from Saturdays to Mondays) and returned to Shenzhen during weekdays (from Tuesdays to Fridays), and that she was told by the Deceased that this arrangement was most convenient for him for his work at the Cemetery. Further in 2007, the family moved to a larger matrimonial home comprising of two connecting units, respectively “Flat G” and “Flat H” (collectively “D’s Home”). Flat G was purchased in the name of the Deceased whilst Flat H was purchased in D’s name.

11. According to D, she had accepted the arrangement that the Deceased would return to Shenzhen during the week, and it was not until the end of 2016 that she was informed by her son that he suspected his father had been having an affair with another woman because of a misdirected WeChat message. When confronted, D said the Deceased gave her the name of his mistress which was not P’s name, and confessed that he had a daughter with this other woman. The Deceased had also said that he had bought a flat for the woman in Shenzhen by way of a mortgage. D said the family was devastated upon D’s admission but the Deceased had promised her that he would not see the woman again and that she and the Deceased had tried very hard to mend their relationship. Thereafter, the Deceased had spent more time in Hong Kong than in Shenzhen with the family.

12. On the other hand, P said she met the Deceased some 28 years ago in the Mainland and started cohabitation with him 26 years ago. Out of their relationship, a daughter PYT was born in November 1998 in Shenzhen, who is now 20 years of age, and is currently attending a university in Hong Kong. P said that the Deceased used to stay with her in Shenzhen during weekdays and would only return to stay with D during weekends.

13. The Deceased was diagnosed with gallbladder cancer on about 1 June 2017 and was admitted to Eastern Hospital subsequently.

14. On 10 June 2017, the Deceased made a will at a firm of solicitors naming D as sole executrix of his will (“1st Will”). In this will, the Deceased bequeathed all his residuary estate to D, after payment of his debts and funeral and testamentary expenses, making no provision for P and PYT. After signing the 1st Will, D and the Deceased visited a psychiatrist Dr Lam Chi Leung to verify that the Deceased did have the requisite mental capacity to make the will. Dr Lam told the Deceased to visit him again on his own on 13 June 2017 before issuing a report to verify the Deceased’s mental capacity.

15. It was not really disputed that the Deceased was admitted to the Eastern Hospital again between the period of 15 October 2017 and 8 November 2017.

16. On or about 23 October 2017, the Deceased’s brothers and sisters who are on P’s side (“P’s Camp”) filed a report with the police at the Eastern Hospital, alleging that the Deceased’s HKID card, Home Return Permit and keys to D’s Home were stolen. It was P’s allegation that D took Deceased’s missing items, which D denied.

17. Eventually, the Deceased applied for replacements of his HKID card and Home Return Permit in November 2017.

18. On 30 November 2017, the Deceased made a will in Chinese at a firm of solicitors, this time naming P as sole executrix of his will and making specific bequests of his shares in two companies and also Flat G to his youngest daughter PYT and bequeathed his residuary estate to P and PYT in equal shares, making no provision for D or their daughter and son (“2nd Will”).

19. According to P, the Deceased on learning that his time might come soon had taken steps to arrange for his burial at the Cemetery in December 2017, and that on 19 December 2017, the Deceased tentatively agreed with one Mr Choy Chau to purchase a “used” burial lot at the Cemetery from him in the joint names of the Deceased, P and their daughter PYT for HK$69,000. On the same day the Deceased had written to the “Leaders” of the Cemetery for waiver of the transfer administration fees, indicating his wish to be buried in the lot to be purchased. Approval was duly given by the management of the Cemetery. The HK$69,000 was duly paid to Mr Choy on 21 December 2017. The transfer of the burial lot was approved and a certificate was issued by a Mr Leung Yin Hay (“Mr Leung”) of the Cemetery on 31 December 2017[1].

20. The Deceased was eventually admitted to the Eastern Hospital again on 26 February 2018 and remained there until he passed away on 2 April 2018.

Legal principles

21. Au J has in the case Re Lu Han Lung [2010] 3 HKLRD 651 summarised the following legal principles in determining who should be entitled to the body of a deceased and its burial[2]:

(1) There is no property in a corpse.

(2) A man cannot by will dispose of his dead body and any direction by will or otherwise by the deceased on burial cannot be enforced and is void.

(3) As a starting position, the executor named in a will or the known personal representative in intestacy is entitled to the possession of the body and responsible for its burial. The right of the surviving spouse or de facto spouse will also generally be preferred to the right of the children.

(4) However, this starting position can be displaced where the court is satisfied that there are circumstances to justify a departure from it. Some such circumstances are, for example, where the prima facie entitled person is not ready willing and able to arrange for the burial of the deceased, or in the case of intestacy, there is no surviving spouse or where no one has indicated to be prepared to apply for the administration of the deceased’s estate.

(5) A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so. He also cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner.

22. Au J had further observed as follows[3]:

(1) The court should not embark on a lengthy adversarial hearing to resolve the various claims and counterclaims, and cross-examination will usually be inappropriate, as this would delay the decision for an unacceptable period while the body remained undisposed of.

(2) The court should apply the consistent principles to resolve the matter. The court should approach the issue by seeking to identify a person with the best claim in law to the responsibility of making the burial arrangements instead of...

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