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HCAL 46/2016
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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW PROCEEDINGS
NO 46 OF 2016

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BETWEEN
LAW HAU YU ()

Applicant

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and

MASTER J. WONG

Putative Respondent

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Before: Hon Chung J in Chambers

Date of Hearing: 15 July 2016

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Date of Decision: 12 August 2016

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DECISION
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Introduction

1.

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This is an application for leave to apply for judicial review.

It is related to the estate of a Mr Chau (respectively the estate and the

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decd), and was commenced in February 2016 against the direction

given by the probate master (in a letter dated 7 August 2015 (and

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reiterated in letters sent in October and November 2015 and in January

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2016)) (among other things) that the estate be joined as the defendant of
HCMP 1647/2015 (HCMP 1647) (the said direction).
2.

The background leading to this application is summarized

below.
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According

to

the

applicants

affirmations

filed

in

(a)

she co-habited with the decd before his death (since 2000);

(b)

she had known the decd since May 1996 and the decd had

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HCMP 1647:

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no family, relatives, blood issue or adopted child;

(c)

the decd has not made any will;

(d)

shortly before his death, in February 2012, the decd handed

to her his bank account passbook and verbally told her it was
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(e)

hers;

she claimed entitlement to the credit balance in the said bank

account either by way of donatio mortis causa, alternatively,

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as a creditor of the estate.

The death certificate exhibited to one of the applicants said affirmations
shows that the decd passed away in Hong Kong on 17 February 2012.

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This Application for Leave

4.

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It is trite law judicial review is a remedy of last resort; in

other words,

If an appeal on the merits exists, that avenue should normally

be tried before applying for judicial review. Even where
grounds for judicial review exist the courts will normally

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require an applicant to pursue the alternative remedy before

applying for judicial review (Hong Kong Civil Procedure
2016, Vol 1, para 53/14/13).

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5.

In the context of non-contentious probate matters, r 62(1),

Non-contentious Probate Rules (Cap 10A) provides:

Any person aggrieved by a decision of the Registrar may
appeal by summons to a judge.

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6.
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In view of the above, this application was directed to be

heard inter partes (the party which in the normal course of event would
appear (for the putative respondent) would be the Department of Justice

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(DOJ)). The precise capacity in which DOJ appeared at the hearing

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would depend on what it considered would most efficiently deal with the
matter.
7.

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The inter partes hearing was scheduled to be heard on

15 July. In a letter dated 12 July 2016, DOJ indicated that it would

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appear for the probate master, and would take a neutral stance and not
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make any submissions as to the merits of this application.

8.

The parties attention was then specifically drawn to r 62(1)

in the afternoon of 14 July.

9.

At the beginning of the inter partes hearing, the applicant

indicated (sensibly) that she would proceed with the matter in accordance
with r 62(1), but she asked for this application to be adjourned sine die
with liberty to restore. On the other hand, DOJ, after some hesitation,
sought the dismissal of this application (more details of the circumstances
of the hearing will be given below).

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10.
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I consider this application to be inappropriate. As has been

made clear in the Form 86 (and the supporting affirmation), the reason
put forth by the applicant in support was in gist that the said direction was

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wrong because the estate, not being an incorporated entity, could not be
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joined as a defendant. There is no complaint concerning unfairness, bias,

procedural injustice and the like against the probate master.

11.

In these circumstances, this application should have

proceeded by way of a r 62(1) appeal, rather than judicial review.

Further, such an appeal should fully and completely dispose of the

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applicants above complaint. The need for this application therefore does
not arise whether the applicant should succeed or fail in such an appeal.
12.

Accordingly, this application is dismissed rather than

adjourned.

During the inter partes hearing, rather than relying on the

relatively clear and settled legal principles set out above, DOJ still
insisted on taking a neutral stance.

Role of DOJ
13.

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Further, instead of rendering

assistance to the court to more efficiently deal with this application,

various proposals were put forth (all of which would result in the

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adjournment of this application); they included:

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(1)

mean);

(2)

appointing an amicus curiae;

(3)

serving the relevant court documents on some possible

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DOJ making an intervener application (whatever that may

concerned party/parties (there was no indication as to who

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that might be).

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None of the above proposals would help promote the underlying

objectives set out in RHC Ord 1A r 1 (see also Ord 1A r 3).

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14.

When queried why DOJ should be so self-inhibitive in its

approach, reference was made by DOJ to the decision in Nattrass v

courts remarks quoted below:
The notion of a judge being able to be heard by counsel to
justify a ruling which he has given in an inferior court is a
bizarre one. a judge has no legitimate interest in the outcome
of the challenge to his ruling. It is wholly inappropriate for
an attempt to be made to meet [the understandable concern that
the successful litigant may not be able to advance the
arguments in support of the challenged decision] by the
unseemly spectacle of the judge who made the ruling seeking to
justify the stance he took (p 489).

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15.

Several features in the Nattrass decision should be noted:

(a)

the judicial review application was brought about by a

pending criminal prosecution (where the opposing parties
were the prosecutor and the defendant);

(b)

the (then) Attorney General was in fact represented at the

judicial review hearing in support of the challenged ruling;

(c)

the challenged ruling concerned the judge recusing himself

from presiding over a pending criminal trial (and the reasons

for the ruling had appeared in writing).

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Attorney General [1996] 1 HKC 480. DOJ focused attention on the

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In those circumstances, one can readily appreciate why the

courts above remarks were made. In fact, that the features mentioned in

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para 15 above were important can be discerned from the following

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passages in the Nattrass decision:

Where he has given reasons for his ruling, he should allow his
own words to speak for themselves (p 489).

[counsel for the judge] has reminded me that when

proceedings before a coroner are the subject of an application
for judicial review, the coroner is a party and is invariably
represented. But the difference is that the proceedings over
which the coroner presides are inquisitorial, there are no
parties to those proceedings, and if the coroner is not a party to
the judicial review , the person aggrieved by the decision
challenged would have no one on whom the proceedings are
to be served (emphasis supplied) (pp 489-490).

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Mr Nicholas Bradley for the Attorney General takes the

preliminary point that Judge Cairds ruling to discharge himself
is not amenable to judicial review (p 490).

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And if there is no one to be served with the court documents, naturally no

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one will appear to oppose the related judicial review.

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17.

A more thorough review of the authorities shows that there is

no inflexible practice for an inferior tribunal not to appear at a judicial

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review application (a vast body of authorities can be found concerning

justices, tribunals and coroners); in fact, whether it may appropriately do

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so depends on circumstances, in particular those set out below.

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18.

The following conclusions can be drawn from the

authorities:
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(1)

an interested party should be served and usually has a right

to appear and be heard by the court: RHC Ord 53 r 5(3) (in

the context of an appeal, Ord 55 r 4(1)(b) (the exception is

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provided for in Ord 55 r 8));

(2)

where an inferior tribunal has been so served, it has two

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choices: to remain neutral and not to appear in court, or to

appear and advance its case;

(3)

where the inferior tribunal decides to be neutral, it is rare

that costs would be awarded against it, whatever may be the

outcome of the court hearing.

The exceptions to this

include: (a) where there was a flagrant instance of

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improper behaviour on its part; (b) where it unreasonably

declined to sign a draft consent order which might obviate
the costs of an unnecessary hearing. On the other hand, the

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quality of the challenged decision is not usually of itself a

reason for awarding costs;

(4)

where the inferior tribunal decides to appear and take part in

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the court hearing, it becomes a party to a lis, and as such

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may recover costs if it wins and may be ordered to pay costs

if it loses (there were also authorities which strongly

encouraged justices not to appear by indicating that the

justices may not have their costs even if successful and be

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liable to pay costs if unsuccessful).

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(Authorities for the above can be found in, for example, R(Davies) v

Birmingham Deputy Coroner [2004] 1 WLR 2739; R v Llanidloes

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Licensing Justices, ex parte Davies [1957] 1 WLR 809; R v Feltham

Justices, exp Haid [1998] COD 440; R v West Yorkshire Coroner, ex parte

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Kenyon, Times, 11 April 1984)

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19.

However, authorities also show that costs may not be

awarded against an inferior tribunal even if it should decide to appear in

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court proceedings. Recognized instances of such exception include:

(a)

where issues of general principles as to jurisdiction and

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procedure are raised, and the tribunal has relevant material to

put before the court: S (A Minor) v Special Educational

Needs Tribunal and another [1995] 1 WLR 1627;

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(b)

where the inferior tribunal exercises a highly specialist

jurisdiction: the Birmingham Deputy Coroner decision,

(c)

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para 22, p 2747;

where the inferior courts bona fides were questioned (or

misconduct is alleged): R v Newcastle-under-Lyme Justices,

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(d)

ex parte Massey and others [1994] 1 WLR1684;

where it is desirable that the tribunal should make its

position clear (which may be by way of letter): R v

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Gloucester Crown Court, ex parte Chester [1998] COD 365;

R v Southwark Crown Court, ex parte Collman (1998)

Archbold News, August; R (Mersey Care NHS Trust) v

Mental Health Review Tribunal [2003] EWHC 1182

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(Admin) (see also Southey, Weston & Bunting: Judicial

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(e)

Review (2012), pp156-157);

where the reasons for the inferior tribunals decision are not

immediately apparent from the record, it may appear to

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assist the court as to the circumstances which brought about

the decision: R v Oldham Justices and Another, ex parte

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Cawley [1996] 1 All ER 464.

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Further to the above, there may be instances where it is appropriate for

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the inferior tribunal and the party which is supportive of its decision to
work out which of them is to appear before court: R v Industrial Disputes
Tribunal, ex parte American Express Co Inc. [1954] 1 WLR 1118.

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20.
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It is perhaps in view of the authorities referred to in para 19

above, the learned authors of Supperstone, Goudie & Walker: Judicial

Review (2014) observed:
Yet this does not mean that the inferior court should play no
part in the litigation at all. It is expected that once a claim has
been made, the inferior court will make clear what its position
on the claim is, usually in writing. In some instances a fuller
written explanation of what happened may also be of assistance
to the court at the judicial review hearing (para 20.4.2 (p
769)).

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21.

Returning to this application, the relevant circumstances are:

(1)

although commenced by way of judicial review, it is in truth

in the nature of an appeal (as provided for by r 62(1));

(2)
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oppose this application;

(3)

the said direction does not determine the final outcome of

the applicants application for grant of representation, and
was procedural in nature. It is unknown if the said direction

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on the materials adduced (especially by the applicant) there

is at present no other party to serve, or would appear to

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reflects the general practice of the probate registry;

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(4)

has been given by the probate master for it.

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perhaps because of the nature of the said direction, no reason

Thus, this may well be a case where the probate masters assistance

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(through DOJ) is needed (irrespective of whether such assistance falls

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within para 19(a), (b) and/or (d) above).

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provides:

Moreover, s 4(9), Intestates Estates Ordinance (Cap 73)

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In default of any person taking an absolute interest under the

foregoing provisions, the residuary estate of the intestate shall
belong to the Government as bona vacantia .

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23.

Hence, apart from providing assistance, and without in any

way pre-judging the matter, the circumstances suggest the government

may have a legitimate interest in the estate in its own right. As such, the
government may well be an interested party.

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24.

In light of the above, there are at least 3 potential reasons

why DOJ should have adopted some stance other than being neutral:

(a)

to provide assistance to the court as to the circumstances

leading to the probate masters said direction (including any

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relevant general practice of the probate registry);

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(b)

any) for his direction;

(c)

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to appear for the probate master and put forth the reasons (if

25.

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to appear for the government and put forth its case (if any).
The Birmingham Deputy Coroner decision also mentioned

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the rarer cases of judges of the county court appearing in judicial review
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applications (at para 5, p 2742), but did not expressly state whether the
above principles are applicable. There does not appear to be any good

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reason (whether as a matter of logic or policy) why they should not.

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(Andrew Chung)
Judge of the Court of First Instance
High Court

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Mr Sui See Chun, instructed by SIU and Company, for the applicant
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Ms Phyllis Wong, Senior Assistant Law Officer and Ms Phoebe Kang,

SGC (Ag), of Department of Justice, for the putative respondent

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