HCMP2304/2025

HCMP2304/2025

A A HCMP 2304/2025 B [2026] HKCFI 383 B C C IN THE HIGH COURT OF THE D HONG KONG SPECIAL ADMINISTRATIVE REGION D COURT OF FIRST INSTANCE E E MISCELLEANOUS PROCEEDINGS NO 2304 OF 2025 F F G IN THE MATTER of the estate of G LEUNG SAI CHIU ( 梁 世 釗 ), H deceased H _______________ I I BETWEEN J J LEUNG KAR HIN ROSS (梁伽顯) Plaintiff K K and L MA LAI FONG (馬麗芳) Defendant L M M N Before: Hon Au-Yeung J in Chambers N Date of Hearing: 7 January 2026 O O Date of Judgment: 9 January 2026 P Date of Reasons for Judgment: 16 January 2026 P Q Q R REASONS FOR JUDGMENT R S S T T U U V V  -2- A A A. INTRODUCTION B B 1. This is the hearing of an originating summons filed on C C 25 November 2025 (the “OS”) for the following reliefs: D D (1) A declaration that the Plaintiff is entitled to possession of the E dead body of the Leung Sai Chiu (梁世釗) (“Father”, and the E F “Deceased”); and F (2) An order that the Plaintiff (“Ross”) be authorized to make G G and/or process applications with Tseung Kwan O Hospital (the H “TKO Hospital”), the Deaths Registry and any other H authorities or bodies for the purpose of carrying out and I I completing the necessary documentation; and procedure for J retrieving the dead body of the Deceased and/or to carry out the J funeral services (including cremation, enshrinement and all K K related services) for the Deceased (the “Funeral Services”), L and that the remains and death documents of the Deceased be L released by TKO Hospital to Ross. M M N 2. This is opposed by the Defendant, the surviving wife of Father N and the mother of Ross (“Mother”), who counterclaims for mirror orders1 O O that: P P (1) Father’s remains and death documents be released to Mother; Q Q (2) Mother be authorized to arrange Father’s Funeral Services R according to Soka Gakkai traditions; and R S S T T 1 See the letter dated 9 January 2026 from Mother’s solicitor to Ross’s solicitor. U U V V  -3- A A (3) TKO Hospital do release Father’s body and death documents to B Mother or Mother’s solicitors. B C C 3. After filing of the evidence and correspondence, despite various D issues raised by Mother, she no longer required an autopsy of Father. D E 4. By the time of this hearing: E F F (1) Ross has agreed that the Funeral Services would use the G customs and traditions of Soka Gakkai; G (2) Both parties agreed that this Court should dispose of the OS H H summarily without filing further evidence, which I agreed. I I 5. Following the hearing, cross undertakings of the parties in J J similar terms have been filed, signed by Ross on 8 January 2026 (“Ross’s K Undertakings”) and by Mother on the 9th (“Mother’s Undertakings”). K The sole remaining issue was whether Mother or Ross should take L L possession of the dead body and arrange the Funeral Services. M M 6. On 9 January 2026, this Court ordered that, upon Mother’s N N Undertakings, O O (1) there be an order in terms of paragraph 2 above; P P (2) the OS be dismissed; Q (3) there be liberty to apply; and Q R (4) on a nisi basis, costs be to Mother. R S 7. Here are my reasons. S T T U U V V  -4- A A B. BACKGROUND B B 8. Father was married to Mother in 1963. There are 4 children born C out of their marriage, in the order of seniority, named: (1) Leung Chun Yim C Teddy (“Teddy”), the first son; (2) Leung Piu King (“Piu King”), the second D D son; (3) Ross, the third son and the Plaintiff; and (5) Leung Pui Yee Polly E (“Polly”), the daughter. E F F 9. In December 2024, Father and Mother had a fall which led to G their hospitalization. Polly, a retiree, came back from the USA (when she G used to live) to take care of the Parents. The Parents lived apart since April H H 2025, for reasons that were disputed. Father lived at his and Mother’s usual I adobe in Tin Shui Wai (the “TSW Property”), whilst Mother lived at Polly’s I rented residence. J J K 10. There was no dispute that Mother’s subsequent attempts to visit K Father at the TSW Property was unsuccessful. Ross’ side had posted up a L L notice on the door that no food or gifts would be accepted and there should M not be prizing open of the padlock. M N 11. There was no dispute that between May and the date of Father’s N death in October, Ross had only seen Mother twice, on 14 May and 2 October. O O On those occasions, police assistance had to be enlisted to enable the Parents P to meet. P Q Q 12. In the period when Father and Mother lived apart, Father R executed 3 documents (“the 3 Documents”): R S (1) On 28 May 2025, an Enduring Power of Attorney (“Father’s S EPoA”), appointing Ross as the only attorney. Father’s EPoA T T U U V V  -5- A A was registered in late May with notice to Teddy and Piu King, B as required by the EPoA. B C (2) On 12 June 2025, a will (“the Will”) appointing Ross as the C sole executor and trustee, and bequeathing all of his assets to D D 3 sons in equal shares. E (3) On 25 June 2025, a Notice of Severance to sever the joint E tenancy of Father and Mother over the TSW Property (“Notice F F of Severance”). G G 13. Father had been hospitalized at the TKO Hospital since H H 25 September 2025. He passed away on 6 October 2025 at the age of 87 for I the cause of chest infection and left ischemic stroke. He was survived by I Mother (then aged 79) and all his children. J J K 14. After Father died, Mother had wanted to enter the TSW K Property but there was a notice on the door which prohibited breaking in by L L locksmith. Two locksmiths refused to prize open the door for Mother. M M 15. Father’s corpse has remained in the TKO Hospital mortuary for N 3 months since his death, there being a dispute between Ross and his Mother N as to who should get possession of Father’s corpse and handle his Funeral O O Services. TKO Hospital maintained a neutral stance. P P Q C. PARTIES’ CASES Q R R 16. There was hot dispute on facts as to what caused Father and S Mother to be separated. Ross’ case was that Polly harassed and frightened S Father. She had attempted to do name chops for Father’s bank accounts and T T caused Father to sign authorizations to the banks in her favour which Father U U V V  -6- A A did not really agree to. It was Polly who had prevented Mother from B returning to live with Mother. In view of what happened in May, Father B executed the 3 Documents. He was allegedly worried that Mother might be C C manipulated by Polly. Given Mother’s condition, any property bequeathed D to Mother might end up in Polly’s name by documents executed against D Mother’s will. E E F 17. Ross submits that: F G (1) As the executor under the Will, he should be entitled to G possession of the body of the Deceased and to arrange the H H Funeral Services; I I (2) Teddy, a member of Soka Gakkai International, could assist in J the Funeral Services to be performed in Soka Gakkai traditions; J K (3) Given the serious cognitive impairment of Mother and the K execution of her Enduring Power of Attorney dated L L 13 October 2025 (the “Mother’s EPoA”) in favour of Polly, M Mother was not in the best medical condition to arrange the M Funeral Services. N N O 18. On the other hand, Mother’s case (supported by Polly) was that O the sons did not take care of the Parents after their fall in December 2024, so P P Polly flew back to do so. In mid-January 2025, there was a scuffle between Q Teddy and Polly. As a result, the 3 sons would not allow Polly to enter the Q TSW Property and would not answer her calls. And yet the 3 sons rarely R R visited the Parents. S S 19. On 14 May 2025, Father had wanted Mother to return home. T T However, Mother decided to live with Polly in order to get better care. U U V V  -7- A A 20. None of the sons contacted Mother about the hospitalization in B September 2025. It was the TKO Hospital who did so. B C C 21. When Father died on 6 October 2025, the sons did not tell D Mother immediately. She did not have the opportunity to see him one last D chance and it caused her great distress. E E 22. Funds had been removed from Father’s accounts to the amount F F of HKD 7,539,893.57, USD 8,724.32, and RMB 60,974.68 (totalling about G HK$7.68 million), clearing the accounts to almost zero. Till now the G whereabouts of the money was unknown. Mother was of the view that for H H 62 years Father had been good to her and Father simply did not need so much I money. She suggested that unless he had hurt his mind due to the fall or was I J influenced by the 3 sons, Father would not have removed all the savings, J severed the joint tenancy or made the Will leaving everything to the 3 sons K K but completely excluded her and Polly. She suspected that the 3 sons had L used Father’s EPoA to remove the funds. A month before his death, Mother L saw Father shivering and not in good spirit at the hospital. She questioned M M whether he had the mental capacity to sign the 3 Documents. N N 23. It was Mother’s case that: O O (1) The persistent refusal of Ross to account for the missing funds P P demonstrated that Ross was not a suitable person to be entrusted Q with the Funeral Services; Q (2) The Will was seriously disputed on Father’s lack of R R testamentary capacity, want of knowledge and approval, and S undue influence by the 3 sons. The Father’s EPoA was S registered only 12 days later than the execution of the Will. The T T timing of the 3 Documents executed, the pattern of exclusion of U U V V  -8- A A Mother, and the refusal to answer basic questions about these B matters created highly suspicious circumstances around the B Will and related documents. C C (3) Ross did not practice Soka Gakkai and never even knew Father D D was a practitioner of Soka Gakkai, while Father and Mother E have practised Soka Gakkai for more than 50 years; and E (4) Mother has proven mental capacity through bank dealings and F F valid execution of her EPoA. G G H D. LEGAL PRINCIPLES H I 24. The relevant principles on determining who is entitled to I possession of the body and responsible for burial have been summarized by J J B Chu J in Zhao Shaoyuan v Chan Mee Lin [2018] HKCFI 1724 at §§21–22, K citing Thomas Au J (as he then was) in Re the Estate of Lu Han Lung [2010] K 3 HKLRD 651 at §32–33: L L “21. Au J has in the case Re Lu Han Lung [2010] 3 HKLRD 651 M M summarised the following legal principles in determining who should be entitled to the body of a deceased and its N burial: N (1) There is no property in a corpse. O (2) A man cannot by will dispose of his dead body and any O direction by will or otherwise by the deceased on burial cannot be enforced and is void. P P (3) As a starting position, the executor named in a will or the known personal representative in intestacy is entitled to the Q possession of the body and responsible for its burial. The Q right of the surviving spouse or de facto spouse will also R generally be preferred to the right of the children. R (4) However, this starting position can be displaced where the court is satisfied that there are circumstances to justify a S S departure from it. Some such circumstances are, for example, where the prima facie entitled person is not ready, T willing and able to arrange for the burial of the deceased, T or in the case of intestacy, there is no surviving spouse or U U V V  -9- A A where no one has indicated to be prepared to apply for the administration of the deceased's estate. B B (5) A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not C legally bound to do so. He also cannot use his or her right C in such a way as to exclude friends and relatives of the D deceased expressing their affection for the deceased in a D reasonable and appropriate manner.” 22. Au J had further observed as follows: E E (1) The court should not embark on a lengthy adversarial hearing to resolve the various claims and counterclaims, F and cross-examination will usually be inappropriate, as this F would delay the decision for an unacceptable period while G the body remained undisposed of. G (2) The court should apply the consistent principles to resolve the matter. The court should approach the issue by seeking H H to identify a person with the best claim in law to the responsibility of making the burial arrangements instead of I trying to resolve the matter based on the “merits”. I (3) In adopting this approach and to resolve the matter in a J practical way, an important consideration is that the body J should be disposed of with all proper respect and decency and, if possible, without unreasonable delay. K K (4) The court would try to arrive at a practical and fair solution, over which reasonable people might disagree. In seeking to L do so, effect should be given as far as possible to the wishes L of the deceased or cultural and religious factors, but only if the same can be ascertained without the need to resolve the M dispute on the evidence.” M N 25. If there is no dispute as to the validity of a will, the executor N should have priority over the body and funeral services. However, where O O there is a bona fide dispute as to the validity of the will, and it is highly P unlikely to resolve the dispute within an acceptable time period, the decision P as to the disposal of the body had to be left to the person in lawful possession Q Q of the body: University Hospital Lewisham NHS Trust v Hamuth [2006] R EWHC 1609 (Ch), Hart J at §§15-17. R S S T T U U V V  - 10 - A A E. THE STARTING POINT B B 26. The starting position was that Ross, as executor under the Will, C was entitled to possession of the body of Father and was responsible for his C burial. D D E 27. Mother contested this and her counsel, Mr Luk, submitted that: E F (1) Lu Han Lung was only applicable to cases of intestacy but not F the present situation; G G (2) As the validity of the Will was contested, therefore, as the H H starting point, she, as the surviving spouse, was entitled to I possession of the corpse. I J J 28. In my view, Lu Han Lung is applicable to both testacies and K intestacies. This is expressly stated in §32(c) of that judgment. K L 29. Mother claimed that the validity of the Will was challenged. L The indication to challenge the validity of the Will appeared in the M M correspondence, especially in a letter dated 28 October 2025 from Mother’s N solicitors (“Chin & Associates”) to Ross’ solicitors (“KB Chau & Co”). N Despite that indication, no probate action has been taken out to date. O O P 30. However, even though there was a dispute as to validity of the P Will, University Hospital was not applicable because Father’s corpse has Q Q been in the possession of TKO Hospital and not Mother. The starting point R remained that Ross was entitled to possession of Father’s corpse. R S S T T U U V V  - 11 - A A F. DEPARTURE FROM THE STARTING POINT B B 31. Ross was ready, willing and able to arrange for the Funeral C Services (with Ross’ Undertakings and terms agreed by Mother). He agreed C to adopt the Soka Gakkai traditions for the Funeral Services, with the D D assistance of Teddy. E E 32. However, I had also considered 3 other angles: (1) Mother’s F F mental capability, (2) the significance of the religious perspective of the G Funeral Services, and (3) the assurance to Mother that she would be able to G attend the Funeral Services. H H 33. Firstly, with regard to her mental capability, according to Ross, I I Mother displayed signs of dementia in 2023 and cognitive impairment J J became more apparent in mid-2024. She was illogical in her speech and K unable to comprehend what was going on in her surroundings, according to K Ross’s observation. L L 34. As late as on 2 October 2025, whilst visiting Father at the M M hospital, Ross could observe that Mother did not appear to be in good N condition, was not able to comprehend what her daughter-in-law said to her, N was unable to have normal conversation with anyone at the scene, nor was O O she able to comprehend where she was. Based on what he observed of P Mother on 14 May and 2 October 2025, Ross highly doubted whether Mother P was able to make any affirmation in this application. Ross suspected that it Q Q was Polly who had been giving instructions on Mother’s behalf. Worse still, R according to the CCTV footage on 11 October 2025 outside the TSW R Property, it appeared that a legal executive of Mother’s solicitors had S S couched Mother and Polly to tear off the “no locksmith notice” at the door, T T U U V V  - 12 - A A to remove valuables and switch off the CCTV, whilst Mother did not give B instructions. B C C 35. This Court initially had concerns as to Mother’s mental D capability. At my direction, Mother attended the hearing. I was told by Polly D that she had had a stroke and thus could not speak up. Mother stated that she E E had not read her affirmation. She was not able to say if anybody had read it F to her. She appeared not to know what her own affirmation was meant to F serve. What was important, however, was that she understood that the G G proceedings were for her to obtain “the papers” of her husband “in memory H of him”. H I 36. I do not expect an old lady like Mother to be conversant with I J the legal proceedings. However, soft spoken as she was, she was firm in J stating a purpose of these proceedings. Having seen and heard her and read K K the evidence before me, there was nothing of weight that could cause the L Court to doubt that this lady’s intention was to handle her own husband’s L Funeral Services. M M 37. Further, the evidence as of 13 October 2025 was that she had N N the mental capacity to execute an EPoA. O O 38. I was satisfied that she had the mental capacity to arrange for P P the Funeral Services. Q Q 39. Mother is aged 79 at the current hearing and is wheel-chair R bound. She has been taken care of by Polly since about December 2024. No R doubt, at her age, if she were to arrange for the Funeral Services, she would S S need assistance, probably from Polly, if not also the sons. That should not T T U U V V  - 13 - A A count against her, because many aged surviving spouses take charge of B funeral services. B C C 40. Secondly, the religious aspect is often the “soul” of funeral D services. It reflects the wish of the deceased and the “last respect” that the D arranger of the funeral services would like to show to him. If the deceased E E had friends or relatives who practise the same religion, equally those friends F or relatives would like to pay respect to the deceased through his preferred F religious mode. G G 41. Ross was not even aware that Father was a member of Soka H H Gakkai International of Hong Kong. He stated in his affirmation that, “If, I for whatever reason, Soka Gakkai becomes an impractical option, [he] would I J arrange for [Father’s] funeral services to be conducted in a traditional J Chinese way.” K K 42. Mother saw this as a lack of genuine commitment acting L L contrary to Father’s religious wishes, and being willing to honour Father’s M wishes only if “practical”. I agreed but this was a foregone conclusion given M Ross’ Undertakings. N N O 43. The more important aspect was that Mother has been a Soka O Gakkai member for 53 years. She practised Soka Gakkai with Father for P P over 50 years. She knew Father’s expressed wish for a Soka Gakkai funeral. Q This was hardly disputable, given her 62 year long marriage with Father and Q that they had lived together until their separation on 17 April 2025. She R R would have the religious knowledge and commitment and was thus in a much S better position than Ross in bringing out the true flavor of the Soka Gakkai S traditions at the Funeral Services in honour of Father. Teddy was no T T comparison to her. U U V V  - 14 - A A 44. Thirdly, Mother, the most senior family member, must have B assurance that she would be able to attend the Funeral Services. She has B been separated from Father for 5 months until his death, with only 2 visits in C C between. She was excluded from all his affairs, from health to wealth. The D distress arising from the separation was immeasurable for such an old lady. D E E 45. It was not necessary to resolve the factual disputes. Despite the F lengthy affirmations on both sides and cross allegations, two things were F quite clear. G G (1) There was no allegation that Father had grudges against Mother. H H Both parties had wanted the Parents to live together and so did I the Parents. It was just that Ross and Polly blamed each other I J for preventing the reunion from taking place. Father and J Mother’s relationship remained good. K K (2) It was undeniable that there remained little trust between L Mother and Ross due to the following: L M (a) The matters in paragraphs 22-23 above may not M constitute a perfect case for setting aside the Will but they N N formed a basket of reasonable suspicions. O (b) Since April 2025, Father had been systematically isolated O from Mother and Polly. The 3 sons controlled all access P P to Father and prevented Mother from seeing Father in his Q final months. Q R (c) She felt that they had failed to notify her of Father’s death. R (d) After Father’s death, the sons continued to deny Mother’s S S entry to her own home since 2006, of which she has a T T U U V V  - 15 - A A half share (even as a tenant in common). Ross even B called the police when he saw her and Polly via CCTV. B C (e) Mother was even denied access to her own medicine and C medical equipment, which were located in the TSW D D Property, by Teddy and his wife. E (f) It was during the period of isolation that Father executed E the 3 Documents that excluded Mother from Father’s F F estate. Ross refused to provide any explanation for these G matters, under the guise that (a) he was not an executor G yet when the withdrawals were made; and (b) that the H H transfers were made with no relation to Father’s EPoA. I Ross may be right but his response of not being surprised I J at such substantial loss of funds shortly before Father’s J death was astonishing. K K 46. Given such circumstances, Mother’s concerns that she might L L not be informed of and hence be deprived of the opportunity to attend M Father’s Funeral Services or of knowing where the ashes would be put M (before Ross’ Undertakings were given), were real and the deprivation would N N be irreparable if she were to miss any part of the Funeral Services. O O 47. Taking all circumstances into account, I found that there were P P overwhelming circumstances to depart from the starting point. Mother Q should take possession of the dead body and arrange for the Funeral Services Q to achieve proper respect and decency for Father. R R 48. Father had died for 3 months already. Funeral Services should S S be arranged as soon as possible and so the order was granted before handing T down of these reasons. T U U V V  - 16 - A A 49. Costs should follow the event as a matter of principle and be to B Mother. B C C G. CONCLUSION AND COSTS D D 50. For the reasons given in Sections E to F above, I therefore made E E the orders in paragraph 6 above. F F 51. A costs statement shall be lodged and served by Mother on or G before 21 January 2026. Grounds of objection shall be lodged and served by G Ross by 23 January 2026. There shall be summary assessment of costs on H H paper without the need for attendance. I I 52. I thank counsel for their assistance. J J K K L L M (Queeny Au-Yeung) M Judge of the Court of First Instance N High Court N Mr Stony Chan, instructed by K.B. Chau & Co., for the Plaintiff O O Mr Horatio Luk, instructed by Chin & Associates, for the Defendant P P Q Q R R S S T T U U V V