RE TAN SRI DATUK LAU GEK POH alias LAU GEK POH

RE TAN SRI DATUK LAU GEK POH alias LAU GEK POH

Stay refused because the risk of rendering the appeal nugatory was not established: the court controls inspection under s73 and respondent gave an undertaking; judge further ordered no leave for inspection before the Court of Appeal hears the appeal; absent a real risk the stay was unnecessary. DNA testing directions were refused because the evidence relied upon was new evidence intended to be adduced on appeal and it is for the Court of Appeal, not the trial judge, to decide whether to admit that new evidence. The written decision is interlocutory and leave to appeal is required because the subpoena did not determine substantive rights and there were no substantive proceedings before the...

Citation
RE TAN SRI DATUK LAU GEK POH alias LAU GEK POH
Parties
Applicant (executor): C K Lau; Respondent (party Who Obtained Subpoena): Respondent; Deceased Estate: Estate of Tan Sri Datuk Lau Gek Poh
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 August 2012
Case Number
HCEA29/2010
Procedural Posture
Probate and Administration (subpoena Application) / Chambers Decision on Summonses (applications for Stay Pending Appeal and for DNA Testing Directions)
Outcome
First summons (stay) refused; second summons (DNA testing direction) refused; appeal held to be interlocutory requiring leave; order made to lodge Will and to prohibit inspection until appeal decided; costs order nisi against applicant.
Legal Topics
Subpoena to Produce Will, Lodging Wills in Probate Registry and Inspection, Stay Pending Appeal, Interlocutory Appeal and Leave, DNA Testing for Parentage Under Parent and Child Ordinance, Admissibility of New Evidence on Appeal
Source Language
EN
Probate Family Law Civil Procedure Evidence Subpoena to Produce Will Lodging Wills in Probate Registry and Inspection Stay Pending Appeal Interlocutory Appeal and Leave +2 more

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Parties

C K Lau

Applicant (executor)

Respondent

Respondent (party Who Obtained Subpoena)

Estate of Tan Sri Datuk Lau Gek Poh

Deceased Estate

Procedural Posture

Probate and Administration (subpoena Application) / Chambers Decision on Summonses (applications for Stay Pending Appeal and for DNA Testing Directions)

Legal Issues

  1. 1 Whether stay of order requiring lodging of will should be granted pending appeal
  2. 2 Whether respondent had standing to obtain subpoena (prima facie interest)
  3. 3 Whether the court should order DNA testing of respondent under s13 Parent and Child Ordinance

Ratio Decidendi

Stay refused because the risk of rendering the appeal nugatory was not established: the court controls inspection under s73 and respondent gave an undertaking; judge further ordered no leave for inspection before the Court of Appeal hears the appeal; absent a real risk the stay was unnecessary. DNA testing directions were refused because the evidence relied upon was new evidence intended to be adduced on appeal and it is for the Court of Appeal, not the trial judge, to decide whether to admit that new evidence. The written decision is interlocutory and leave to appeal is required because the subpoena did not determine substantive rights and there were no substantive proceedings before the...

Court Disposition

First summons (stay) refused; second summons (DNA testing direction) refused; appeal held to be interlocutory requiring leave; order made to lodge Will and to prohibit inspection until appeal decided; costs order nisi against applicant.

Orders

  • Applicant to bring into and leave with the proper officer in the Probate Registry the original Will of the deceased within 8 days from this Decision being handed down
  • No leave may be granted for inspection of the Will before the appeal is heard and determined by the Court of Appeal