LEGAL SUPPORT FOR TAI PO FIRE

5. Letters of Administration (with Will annexed)

A. Cremation

Cremation is the most common way of disposing of human remains in Hong Kong. The body is burned to ashes, which can be stored or placed in various ways to commemorate the deceased. There are six crematoria operated by the government. For detailed information about government-run crematoria, please click here.

Applications for cremation should be made at the Cremation Booking Office of the Food and Environmental Hygiene Department (FEHD) at the Joint Office. In addition to submitting the applicant’s information, the application must be stamped and approved with a seal by a licensed undertaker of burials registered with the FEHD, and the information of the licensed undertaker of burials must be filled in. Cremation fees can be found here. The FEHD will provide cremation sessions within 15 days from the day following the submission of the application for the applicant to choose from.

The rules for cremation coffins are as follows:

• The surface should not be inlaid with metal ornaments or plastic materials;
• No items or valuable burial items made of metal or plastic materials should be placed inside the coffin;
• The name of the deceased must be displayed;
• Size restrictions: vary according to individual crematoria and should be checked beforehand.

On the day of cremation, the deceased’s family can consult and apply with the crematorium staff to arrange for witnessing the cremation through closed-circuit television.

The following will mention several ways and their related requirements for the interment of ashes.

B. Columbaria

In Hong Kong, the most common and popular way of interment of cremated ashes is to place the cremated ashes in columbarium niches.

Government columbaria

There are 12 public columbaria managed by the Food and Environmental Hygiene Department (FEHD). The FEHD website lists the available ash niches for application.

The FEHD’s columbarium offers two types of ash niches to choose from:

• standard niches – holding more than two sets of cremated ashes
• large niches – holding more than four sets of cremated ashes

The subsequent set of cremated ashes deposited in a niche shall be those of a kinship of or in close relationship with the deceased first deposited in that niche.

Kinship is a general term referring to the most common types of “relatives,” which includes spouses, parents, grandparents, siblings, spouse’s father, spouse’s mother, daughter-in-law, son-in-law, or direct descendants of the paternal or maternal line.

In addition, with effect from 26 April 2019, the FEHD has implemented extendable allocation arrangements for public niches. The initial interment period is 20 years and can be extended at 10-year intervals thereafter upon payment of the prevailing prescribed fee, with no upper limit on the number of times a niche may be extended. For details, please refer to the FEHD’s notice (in Chinese only) and the relevant introductory video.

Columbaria in private cemeteries

In addition to government-managed cemeteries, other private cemeteries in Hong Kong also provide columbarium niches for ash placement. Common cemeteries include the Chinese Permanent Cemeteries (website in Chinese only), Hong Kong Chinese Christian Churches Union Cemetery (website in Chinese only), Hong Kong Buddhist Cemetery (website in Chinese only), and the Catholic Cemeteries.

Private Columbaria

The Private Columbaria Ordinance (Cap. 630) came into effect on 30 June 2017. Under the ordinance, operating a private columbarium in Hong Kong requires a license, exemption, or temporary exemption from liability (TSOL). Only licensed private columbaria can sell or rent niches to new tenants. A list of licensed private columbaria can be found and verified on the website of the Private Columbaria Licensing Board.

Under the Ordinance, a 9-month grace period between 30 June 2017 and 29 March 2018 will be applicable to a private columbarium that was in operation immediately before 30 June 2017. For columbarium which was not in operation immediately before 30 June 2017 or columbarium which has been in operation since 1 July 2017, the grace period does not apply.

During the grace period, private columbarium that were still in operation up until 30 June 2017, can continue to operate, but their operators cannot sell or rent niches to new tenants during the grace period. After the grace period, private columbarium niches must obtain a license, exemption, or TSOL to continue operating. Otherwise, they must cease operations and carry out the “Prescribed Ash Disposal Procedures” as required by law.

FAQ 

What happens if the chosen private columbarium is not licensed? 

Ashes can be placed in a private columbarium until 29 March 2018. If the private columbarium has not obtained a license or exemption by that time, you must find a licensed or exempted private columbarium to place the ashes. Depending on the situation, you may be entitled to compensation from the operator. 

It is recommended that before any agreement has been signed or payment has been made, one should verify with the operator of the private columbarium on whether the private columbarium has obtained a licence and how compensation will be awarded if it ceases operation. 

For more information, please refer to the Food and Environmental Hygiene Department’s website on regulating private columbaria. 

Home

Apart from the above, it is legal for ashes to be placed at home without the need to apply to the government. As cremated ashes have been processed at a high temperature, they will not pose any threat to public health. Members of the public may keep no more than 10 containers of ashes in domestic premises and each container should contain the ashes of no more than one person.

C. Burial

Burial is generally the more expensive after-death option in Hong Kong. The remains must be exhumed (i.e. the skeleton removed from the grave) six years after burial in a public cemetery.

On the day of burial, the cemetery office requires the “Certificate of Registration of Death”, the “Burial Permit” and payment of the relevant fee(s). A list of charges for cemeteries and crematoria services can be found on the FEHD website.

There are 10 public cemeteries managed by the FEHD, and a number of private cemeteries operated by religious, statutory and other private organisations that provide burial grounds for the deceased. 

D. Garden of Remembrance

The government operates 13 Gardens of Remembrance, where members of the public can apply for scattering of cremated ashes of the deceased free of charge. Those who wish to mount commemorative plaques in memory of the deceased after scattering of cremated ashes in the Gardens of Remembrance may only do so through masons registered with the FEHD. These masons are allowed to supply and mount commemorative plaques in the Gardens of Remembrance, but fees will apply. A list of these contractors can be found on the FEHD website.

Memorial rituals may be performed at the garden and the ashes can be scattered by family members or FEHD staff.

You can apply to Hong Kong or Kowloon Cemeteries and Crematoria Office in person or through an authorised agent. You can download the application form by clicking here. The applicant must have the original copy of the “Permit to Take Away Cremated Ashes” and the copy of the deceased’s proof of Hong Kong identity.

E. Sea scattering

You may also choose to scatter the remains in designated Hong Kong waters. There are currently three designated areas: east of Tap Mun, east of Tung Lung Chau and south of the West Lamma Channel. 

The FEHD provides free ferry service every Saturday morning from North Point (East) Passenger Ferry Pier to different designated sea areas during specific periods to perform ash scattering ceremonies:

• East of Tung Lung Chau (April to September)
• South of West Lamma Channel (October to March)

The ferry service can accommodate ash scattering for up to 25 deceased persons at a time, and each family can have up to 11 relatives and friends on board. professional funeral director will be on board to assist family members and friends in the memorial ceremonies.

Apart from free ferry service provided by the FEHD, family members can also make their own arrangements to hire a vessel to go out to sea at their own expenses through private companies. Families can arrange personalized memorial ceremonies according to personal preferences or needs. You should make your own judgments about the choice and quality of charges and services. Details of the relevant services and their comparison can be found at the Government’s Green Burial website here for reference.

Sea scattering   is intended as a relatively environmentally friendly after-death arrangement, so no objects apart from the remains and limited quantities of flower petals are allowed to be thrown into the sea. 

Regardless of whether they choose the free ferry service provided by the Government or arrange their own vessels, members of the public should follow the application procedures. Application forms can be downloaded here. After completing the form, applicants can submit their applications at Kowloon or Hong Kong Cemeteries and Crematoria Office. If the applicants choose to arrange the ferry service by themselves, theyshould confirm the date and time with the relevant company or organisation before applying.

F. Import and export of dead bodies / exhumed remains / cremated ashes

Dead bodies

If you wish to transport the deceased out of Hong Kong, you must apply for a “Permit for the Removal of a Dead Body from Hong Kong” (free of charge) and a certified copy of a death entry (commonly known as “death certificate”) at the Death Registry. You also need permission from the authorities in the place to which you are transporting the deceased and obtain an embalming certificate from a professional embalmer recognised by the local consulate or laws and regulations who has embalmed the deceased. You can seek permission through the relevant embassy or consulate. You will need to make private arrangements for the transportation of the deceased out of Hong Kong.  Please refer to the FEHD’s website for details.

Exhumed remains

If you wish to transport exhumed remains out of Hong Kong, you must make an application at the Cemeteries and Crematoria Office of the FEHD. Please click here to visit FEHD’s website for more details.

Cremated ashes

If you wish to cremated ashes out of Hong Kong, you must make an application at the Cemeteries and Crematoria Office of the FEHD. Please click here to visit FEHD’s website for more details.

After-death arrangements

Deaths caused by a fire incident are considered unnatural deaths. The deceased’s body must be transferred to a Public Mortuary and reported to the Coroner. During this process, family members are required to attend the mortuary for identification of body and may need to meet with a forensic pathologist.

The following sections provide information on death registration, cremation or burial, interment of cremated ashes, as well as options such as Garden of Remembrance and sea scattering. Families may follow the legal procedures to make appropriate arrangements for their loved ones.

In addition, the Food and Environmental Hygiene Department (FEHD) has prepared “A Guide to After-Death Arrangements”, which can be downloaded here.

Personal Injuries

Injured persons

Injuries sustained in a fire fall within the scope of personal injury. If it can be established that the incident involved negligence or a breach of statutory or other legal duties, the affected person may, in accordance with the law, pursue a claim against the party in fault. The potential scope of compensation includes medical expenses, rehabilitation costs, loss of earnings, pain and suffering, and other losses arising from the incident.

The following pages set out the basic legal framework governing personal injury matters, which you may follow when addressing the relevant procedures and claims.

What are personal injuries?

A personal injury occurs when a person suffers bodily injuries during an accident.  Personal injuries refer not only to physical damage; they can refer to psychological damage as well. For example, an accident victim might suffer from Post Traumatic Stress Disorder (PTSD) caused by the particularly distressing experience of the accident.

Accidents and injuries can have a major impact on one's life and may lead to permanent disabilities and financial problems. One may require ongoing medical treatment and suffer from long-term pain. One might be forced to change jobs in the aftermath of the accident or even be made unemployed.  Personal injury claims vary immensely in nature and circumstances as no two accidents are ever the same.  When a person's injury or death is caused solely or partly by the fault of another person or agent, the injured victim can institute legal action for personal injuries to obtain compensation from the wrongdoer.

When can I make a claim for personal injury?

You may claim compensation for personal injury through legal action in Hong Kong when you have suffered injuries as the victim of an accident that was caused by the fault of a party other than yourself.  A legal action for personal injury is a civil lawsuit that is directed at compensating a victim who suffers bodily injury due to an accident that is caused by a wrongdoer. It does not impose criminal liability for punishing the wrongdoer.

The mere fact that an accident occurred is not by itself sufficient to prove that the defendant has been negligent. The burden of proof is on the plaintiff (in this case the person injured) to show that on the balance of probability, the accident was caused by the fault (negligence) of the defendant(s).  The burden of proof of liability for a personal injury claim may be based on a number of causes of action. 

How to make a claim for personal injuries?

It is important to bear in mind that generally the time allowed for submitting a personal injury claim to the Court is limited to three years from the date of the accident. If you do not commence proceedings within the 3-year time limit, you will lose your right to sue.

Here are some practical tips for preparing your claim for personal injuries:

• Following the injuries sustained in the fire, you may have already received emergency assistance and medical treatment. You are advised to continue documenting any physical discomfort, symptoms, or medical conditions that may arise, and to retain all relevant medical records, reports, and receipts, as these may be required as support evidence in support of any future personal injury claim.
• As any future personal injury claim will require proof that the injuries were caused by the acts or negligence of another party, if you obtained any photographs, video recordings, or other records taken at the time of the incident or afterwards in safe circumstances, these materials may constitute important evidence for your claim. You should retain and organise any such existing materials in your possession and, where possible, obtain relevant information or records held by witnesses.
• Collect the contact details of any person who witnessed the accident and notify them that they will be contacted at a later date.
• A record of the accident, including the place where it occurred, the date and time, the personal details of any witnesses, and details of the parties involved, will all be required when filing a personal injury claim.
• If the personal injury has resulted in loss of working ability or has caused permanent personal damage like the loss of a limb, caused you to be confined to a bed or to require nursing services, these circumstances need to be taken into account as the scope of claim. You should retain all medical records, employment records, and unemployment-related documentation associated with the incident.

You should keep or re‑obtain payslips or any proof of income from before the accident, such as copies obtained from your employer, bank, or tax documents, to serve as evidence of loss of income due to being unable to work because of the injury.If the amount of compensation that you want to claim is over HK$3,000,000 you need to start your action in the Court of First Instance of the High Court.  Claims for an amount under HK$3,000,000 should be filed in the District Court. Claims under HK$75,000 should be pursued in the Small Claims Tribunal.

In all cases it is advisable to consult solicitors who are experienced in dealing with accident compensation claims, and they will advise whether or not your intended claims have any merit, that is, whether or not there are reasonable grounds for your claim. Your solicitor will be able to organise your evidence in order to present it to the party being held responsible and their insurers. Please note that if records of the accident have not been properly kept, or are incomplete, this can be a big drawback in substantiating your claim.

Legal procedures involved in personal injury proceedings

In all cases it is advisable to consult solicitors who are experienced in dealing with accident compensation claims and they will advise whether your intended claims have any merit. Your solicitors will also handle all the legal procedures involved in the personal injuries proceedings for you.

Personal injury litigation is no different from any other form of litigation. The parties should present their case to the court for its determination.  The judge will act as an umpire and make decisions after considering the evidence and hearing the arguments from the opposing parties.  The losing party will normally be ordered to pay the costs to the winning party.  The costs are the expenses that the winning party had to spend on the preparation and hearing of the matter, including their expenses for the solicitors and barristers representing them.  The amount of these costs can be substantial, depending on the complexity of the case, the work required for preparation of hearing and the length of the hearing.

Through the Personal Injury Practice Directions, the courts now have increased authority to monitor the progress of personal injury litigation, and take an active role in case management and measures to control undue delay.  Further, with the introduction of the Civil Justice Reform, effective from 2nd April 2009, the implementation of far stricter case management and pre-trial steps to promote mediation and settlement are in place.  Strict timetables have to be adhered to at every step in the process, whilst a letter before action has become mandatory in personal injury litigation.  The regime is now strict and those who fail to comply with each and every step of the process may face direct fines or other additional costs.

For your general reference, in the following sections we briefly provide in a nutshell some of the legal procedures involved in typical personal injury proceedings.  In general, personal injury proceedings are governed by Practice Direction 18.1 which can be downloaded from the Judiciary website.  Litigation is the last resort in a dispute and the parties involved are always encouraged to explore ways to reach an amicable settlement of their cases by using methods such as without prejudice correspondence and mediation.

Some important legal documents and procedures are highlighted as follows:

 1. Letter before Action (plaintiff) and Constructive Reply (defendant)

Prior to the commencement of proceedings, the claimant should send to the proposed defendant(s) 2 copies of a letter of claim, which should follow the prescribed format of the specimen letter provided under Practice Direction 18.1.This letter of claim can be amended to suit the particular case.  Where the identity of the insurer(s) concerned is known, a copy of such letter of claim should additionally be sent to them.  It may be appropriate to make a proposal for arranging expert medical examination.  The claimant shall give as much information and produce such documents as are reasonably required to enable the proposed defendant(s) to give a constructive reply.

The letter of claim should be sent no later than 4 months prior to the commencement of proceedings, and the proposed defendant(s) should reply constructively to the letter of claim within one month.  If the defendant makes no such reply, the claimant will be entitled to commence proceedings forthwith without risk as to legal costs.  If the plaintiff receives a reply within one month, the parties should over the next 3 months communicate constructively and provide mutual disclosure of information and documents with respect to issues of liability and the amount of compensation sought.

2. Writ of Summons

Writ of summons is the appropriate mode by which to commence a personal injury action. Further, the prescribed Form 16C should accompany your writ. It is required for the admission of your claim. You may go to the website of the Judiciary to view these court forms.

3. Statement of Claim

You must state the age and date of birth of the Plaintiff in the Statement of Claim. For claims under the Fatal Accidents Ordinance (Cap. 22), similar particulars of the deceased and the person(s) on whose behalf the action is being brought must be given.

The following documents must be served with the Statement of Claim:

(i) medical report(s) or a post-mortem report if one exists.  At least one medical report must describe the Plaintiff’s condition at a time preferably no earlier than 4 months prior to the service of the report; and

(ii) Statement of Damages.

In order to avoid unnecessary delay and costs, the Plaintiff should also serve the following documents:

(i) a copy of any Statement of Facts and finding of guilt, arising out of any prosecution of any party in respect of the accident in which the Plaintiff was injured or the deceased was killed. This should be accompanied by a sketch plan prepared by and photographs taken by and / or on behalf of any investigating or prosecuting authority, and any statements made by any witnesses, including where available a Police Investigation Report or a report by an Occupational Safety Officer;

(ii) in respect of any post-accident earnings,

(a) where the Plaintiff has returned to work other than with his pre-accident employer and if such employer(s) is / are not Defendant(s) in the action, a record of earnings and allowances received by the Plaintiff contained reasonably sufficiently either in his pay slips, statement(s) obtained from his employer(s) or his bank account or other records; or

(b) where the Plaintiff is self-employed, his profit and loss accounts, together with copies of his tax returns lodged with the Inland Revenue Department by him / her and, where appropriate, by his employer(s), and his ORSO and / or MPF Statements;

(iii) in respect of pre-accident earnings,

(a)  where the Plaintiff was employed by employer(s) who is / are not Defendant(s) in the action, a record of earnings and allowances received by the Plaintiff for the 12-month period prior to the accident, contained reasonably sufficiently either in his pay slips, statement(s) obtained from his employer(s) or his bank account or other records; or 

(b) where the Plaintiff was self-employed, his profit and loss accounts for the 2 years prior to the accident, together with copies of his tax returns lodged with the Inland Revenue Department by him / her and, where appropriate, his ORSO and / or MPF statements for the 2 years prior to the accident;

(iv) copies of any statements by the Plaintiff and any other person who was an eyewitness to the accident in question as to the circumstances of the accident, upon which the Plaintiff relies in support of his pleaded case, to the extent that this has not been fulfilled by (i) above.

4. Statement of Damages

The Statement of Damages sets out the full particulars of the types of damage claimed including a summary of the Plaintiff’s injuries, the treatment received and the prognosis. Such Statement is generally classified into two types:

“In Fatal Accident Cases” (see below for relevant chapters about seeking compensation by the deceased’s family)

“In Personal Injuries Cases” 

(a) the Plaintiff’s date of birth;

(b) a summary of the Plaintiff’s injuries, the treatment received, the permanent disability, if any, suffered by him / her and, where practicable, the prognosis in respect of such disability;

(c) any special damages claimed for losses and expenses already incurred, including pre-trial loss of earnings with full particulars of the pre-accident employment income for 12 months preceding the accident;

(d) an estimate of any future expenses and losses, including loss of earnings, pensions and MPF contributions, and, where practicable, the multiplier (an actuarial figure for calculating a lump sum amount to compensate the plaintiff for future loss of earnings, the loss of pension rights and to cover future expenses) or the range of multipliers claimed in respect of such future losses and expenses, and such estimate should give the full particulars of any credit given for post-accident earnings;

(e) where practicable, all material facts relied upon in support of a claim for damages for loss of earning capacity; and

(f) where practicable, a statement of the range of damages claimed as general damages for pain, suffering and loss of amenities and damages for loss of earning capacity.

5. Defence

Within 28 days of filing the Acknowledgment of Service, the defendant must file a Defence (stating all the grounds for denying the alleged liability), together with other documents as required by the Practice Direction, including any statements of the defendant and other witnesses (Witness Statements).  The defendant must explain in his defence why the defendant is disputing the Plaintiff’s claim.

6. Certificate (fee arrangement)

The Court requires the Plaintiff and his Solicitor to sign a certificate stating that the action is not funded by any third party on the basis of a fee arrangement contingent upon the outcome of the litigation. This certificate must accompany the Writ. It is important to bear in mind that any fee arrangement contingent upon the outcome of the litigation (e.g. no-win-no-fee arrangement) are unlawful save for agreements entered into with the Legal Aid Department under the Supplementary Legal Aid Scheme established under the Legal Aid Ordinance (Cap. 91).

7. Statement of Truth

The Statement of Claim and Statement of Damages should contain a Statement of Truth in compliance with The Rules of the High Court (Cap. 4A), Order 41A, rules 2 and 5 and also with Practice Direction 19.3 (Practice Direction on Statement of Truth).

8. Protocol for Commissioning Expert Reports

As a general rule, a leave of the Court or consent of the parties involved is required before any expert evidence can be presented at a trial.

If you obtain expert evidence, other than from a single joint expert or pursuant to joint examination and joint expert report with the expert(s) of the other party, before the court agrees for you to do it, you do so at your own risk regarding costs and / or eventual refusal of leave to present such expert evidence.

A party who unreasonably fails to cooperate in instructing or arranging a joint examination of the injured person, and / or in instructing or preparing a joint expert report, will risk sanctions being imposed on that party by the Court as it deems fit. These sanctions may include refusal of leave by the Court to present an expert report prepared singly by such party's own medical expert and / or refusal by the Court to allow costs for obtaining such report.

9. The Check List Review and Case Management Questionnaire

A date for a Check List Review Hearing shall be given to the applicant on the date of the filing and issue of the Writ, and this date shall be not less than 5 months and not more than 6 months from the date of filing, and shall be indorsed upon the Check List Review Notice and the Writ.

At the Check List Review Hearing, the PI (Personal Injury) Master will give directions relating to management of the case and to fix a timetable for the steps to be taken.  The PI Master may also consider applications from the parties and make such orders on his own motion where it is appropriate for proper conduct of the case.

10. Case Management Conference

A Case Management Conference may be arranged by the PI Master upon application or on his own motion by directions on paper or at the Check List Review Hearing. A Case Management Conference is a critical stage in the proceedings and for most cases virtually the only milestone event before trial. Parties are expected to have complied with the timetable laid down by the Court by the time of the Case Management Conference. Unless sufficient grounds have been shown to it, the Court will not grant extensions of time for compliance. If it does, the grant of extension will most likely be on an unless order basis with self-executing sanctions.

11. Pre-Trial Review

The Court may provide for and fix a date for hearing a Pre-Trial Review by directions on paper, at the Check List Review Hearing, or subsequently. By mutual consent, the parties may apply to the PI Master for a Pre-Trial Review by sending a letter explaining the reasons why they want to have the hearing.

At the Pre-Trial Review, all parties must have the necessary information regarding the availability of their Counsel, witnesses and, where appropriate, experts, so that the Judge can fix a reasonable trial date.  At the Pre-Trial Review, the Judge may consider applications for or make such orders as may be necessary and appropriate for the efficient resolution of all outstanding matters, in order to ensure that the action is tried justly, speedily and efficiently.

Is there a time limit for filing a personal injury claim?

Under section 27 of the Limitation Ordinance (Cap.347), where a plaintiff makes a claim for personal injury, the limitation period is three years from the date of the accrual of the cause of action (that is, the date of the accident / the date when the plaintiff was injured) or the date of knowledge (that is, knowing that the injury was significant and attributable to the defendant), whichever is later.

According to section 28 of the Limitation Ordinance, where the claim is one of a fatal accident, the limitation period is three years from the date of death or the date of knowledge of the death by the deceased's dependent, whichever is later.

Where the person injured is under a disability, the 3 years' limitation period is not applicable until the person ceases to be under the disability or dies, whichever is earlier (section 22(1) and 22(2) of the Limitation Ordinance).  A person is considered to be under a disability if he/she is a child or a patient who is mentally incapacitated.  Thus, for children, the limitation period is not applicable until the age of 18.

However, the Court has discretion to extend the limitation periods where it is fair and reasonable.

How much could my claim be worth?

It is difficult to provide exact figures as regards how much compensation a successful claim for a personal injury would bring because each case is different in circumstances and no one case will be exactly the same as another. It is recommended that you consult a lawyer for a detailed explanation of how to organize and proceed with a claim for damages.

In general terms a compensation claim for personal injury will be calculated by taking into account the past and future financial cost caused by the injuries sustained in the accident, the pain and suffering that was caused as a result, and the interest that has accrued from the time that the proceedings were served. The court would also consider any amount payable from the financial loss attributable to the injuries caused by the accident and legal costs.

The main objective of compensation is to place the claimant (person making the claim) in the position that they would have enjoyed had the accident not occurred, insofar as monetary compensation can achieve this.  The usual remedies include:

For a fatal claim (see below for relevant chapters about seeking compensation by the deceased’s family)

For a non-fatal claim

a) Damages for pain, suffering and loss of amenities (“PSLA”) 

In assessing a PSLA award, the Court takes into account previously decided cases of comparable injury as a guideline for the level of awards.  The claimant's age, previous and current medical condition, length of hospitalization, the impact of the injuries, the kind and number of treatments or operations received, cosmetic or facial injuries, and psychological problems will be considered.

b) Loss of earnings 

Depending on the severity of the injuries sustained, the claimant is entitled to claim in full for loss of earnings during the sick leave period and for any subsequent loss of earnings (full or partial) that may be caused by disability resulting from the injuries sustained in the accident.  The claimant's age and the earnings of comparable workers are also relevant in determining claims for loss of earnings.  Any income that is earned by the claimant after the accident will be taken into account when assessing the claimant's entitlement to claim for loss of earnings.

c) Other special damages (miscellaneous expenses) 

The claimant is entitled to be compensated for other amounts that are reasonably incurred as a result of the accident.  Common items include hospital fees, private doctor's expenses, tonic food expenses and travelling expenses.  On occasion, claims for other damages can be made based on the particular needs of the claimant, such as expenses for certain equipment, subject to their need and reasonableness being established.

d) Interest on the above damages

e) The claimant’s legal costs

Can I apply for Legal Aid for my personal injury claim?

Lay people may find it difficult to handle Personal Injury Claims, as they involve medical and legal issues that are beyond the grasp of ordinary citizens.  Solicitors are usually engaged to advise on these cases. If you cannot afford to instruct a solicitor, then you can consider applying to the Legal Aid Department for legal aid, which will be granted subject to a test of your means (financial eligibility) and the merits of the case (whether or not you have substantial grounds for legal action).

Legal Aid

The Legal Aid Department provides legal representation for eligible applicants by providing you with a solicitor and, if necessary, a barrister, in civil or criminal proceedings.

Legal aid is available for cases involving personal injury or death.  Any person, whether or not ordinarily resident in Hong Kong, who is involved in the circumstances described above: i.e. a personal injury, may apply for legal aid.  Legal aid will be granted if the applicant is able to satisfy the statutory criteria as to their financial eligibility and the merits for taking or defending the legal proceedings.

Means Test 

The purpose of the "means test" is to assess the financial resources of the applicant. Under the Ordinary Legal Aid Scheme, the upper financial eligibility limit is HK$449,620.  Financial resources of an applicant are his or her monthly disposable income multiplied by 12 plus his or her disposable capital.

Merits Test 

The main purpose of the "merits test" is to determine whether an applicant has a reasonable claim or defence and whether or not the grant of legal aid to an applicant is justified.  Apart from considering the prospect of success, the Director may refuse legal aid in cases where he would be unable to enforce a judgment e.g. the opposite party is uninsured and has no valuable assets.  The Director will also give due weight to the importance of the case to the applicant in deciding whether to grant legal aid.

For more details about legal aid, please click here.

Supplementary Legal Aid Scheme

The Legal Aid Scheme provides legal representation to the "sandwich class" whose financial resources are above the upper eligibility limit for the Ordinary Legal Aid Scheme (i.e. $449,620) but do not exceed $2,248,110.

Under the Scheme, legal aid is available for cases involving personal injury or death, where the claim for damages is likely to exceed $75,000.  It also covers claims under the Employees' Compensation Ordinance irrespective of the amount of the claim. The applicant must pay an initial application fee of $1,000 plus an interim contribution of $112,405 upon acceptance of their legal aid.  If your case is successful, you have to pay any expenses and costs incurred in the case that are not recovered from the opposite party to the Director of Legal Aid out of the damages / compensation recovered. In addition, you will have to pay 20% of the damages recovered into the Supplementary Legal Aid Fund.  If your case is settled before counsel is briefed to attend trial, this percentage will be reduced to 15%.

For more details about Supplementary Legal Aid Scheme, please click here.

Law Society Emergency Free Legal Helpline for Tai Po Tragic Fire

In response to the Tai Po Fire, The Law Society of Hong Kong has set up a temporary panel under the “Emergency Free Legal Helpline for Tai Po Tragic Fire” 28401011 since 27 November 2025. The Helpline provides preliminary free legal advice to the public on the five areas of law, namely: 

• Personal Injuries
• Wills & Probate
• Insurance
• Civil Litigation
• Building Management

A Panel of solicitors will provide telephone consultation to accident victims for up to 45 minutes free of charge.

The helpline operates from 9 a.m. to 9 p.m., Monday to Sunday. 

Do not engage recovery agents to handle your claims

Recovery agents are neither professionally qualified nor subject to any code of professional conduct.  A recovery agent will finance the claim by paying the legal fees and other disbursements, and then the accident victim has to hand over a share of his compensation to the recovery agent.

There is no compulsory insurance covering any claims directed at recovery agents and they are of unknown financial backing.  Since accident compensation in Hong Kong is assessed on the basis of actual loss, victims using recovery agents will not be adequately compensated as part of their compensation has to be paid to the recovery agents.  The more seriously injured victims may then not have sufficient means to maintain their livelihood.

Recovery agency contracts are generally champertous in nature and are unenforceable.  Maintenance (of which champerty is a more serious form) remains a criminal offence in Hong Kong and recovery agents are liable to be prosecuted.  Accident victims relying on recovery agents are likely to jeopardize their chances of getting the best possible redress.  Accident victims should approach solicitors or the Legal Aid Department directly.

It is important that you seek the services of a qualified, reputable and specialist firm of solicitors that have a strong background in the area of personal injury litigation. Such a firm should be able to provide you with expert advice on whether you are qualified to make a claim, and how to collate and present the supporting documentation. They will start the claim for compensation for you by acting on your behalf if they believe you have a strong case.

Families of Deceased

If your family member has unfortunately passed away in the fire accident, in addition to arranging the post-death arrangements, you may also consider whether there are any legal actions against the party at fault for compensations. According to the relevant personal injury regulations, if it is established that the incident was caused by negligence or breach of duty of another party, the deceased’s family members may be entitled to bring a claim in accordance with the law. 

The procedures applicable to such claims are broadly alike to those for personal injury claims brought by the injured person, and family members may refer to the above steps when initiating a claim. The potential scope of compensation may include funeral expenses, loss of financial support resulting from the death of the primary breadwinner, and damages for emotional distress.

• A member of my family passed away in the accident. Can I initiate personal injury proceedings on behalf of my family member?  What is the procedure that I have to follow before suing the wrongdoer?
• Statement of Damages
• Claims involving fatal accidents

• What is the function of a coroner’s court? 

   

A member of my family died in an accident. Can I initiate personal injury proceedings on behalf of my family member? What is the procedure that I have to follow before suing the wrongdoer?

In case of a fatal accident, a claim may be made by the deceased's estate (i.e. the claim is made under the deceased's name but handled by his/her representative). Where a Grant of Letters of Administration or Probate has been issued, particulars, such as the date of the Grant, the Grant number and the details of the executor/administrator of the deceased's estate must also be provided in the Statement of Claim.

Non-financial losses and financial losses that have been incurred between the date of the accident and the date of death can be claimed against the defendant. Financial losses include medical expenses, funeral expenses and loss of future accumulation of wealth.  A claim may be made by the deceased's dependents (such as the children or the spouse) for loss of dependency.  A claim for non-financial losses, such as bereavement (mental depression/suffering due to the death of a relative), may also be brought by the deceased's relatives.

The names and dates of birth of the deceased and the person who wants to seek compensation must be written in the Statement of Claim.  Other particulars to be mentioned in the Statement of Claim and the Statement of Damages include: the extent of dependency of each dependent, the income and occupation of the deceased, a summary of the injuries, the medical treatment received, and medical and funeral expenses.

Statement of Damages

In fatal accident cases, a Statement of Damages should include the following information: 

In Fatal Accident Cases

(a)      the name and date of birth of each dependant and their status e.g. student at university or nature of employment;

(b)      the deceased's date of birth, occupation and income on the date of the accident;

(c)       any special damages claimed for losses and expenses already incurred (including loss of dependency);

(d)      an estimate of any future expenses and losses, including loss of dependency, and, where practicable, the multiplier or range of multipliers claimed in respect of such future losses and expenses;

(e)      an estimate of the claim for loss of accumulation of wealth, including, where practicable, a statement of all material facts relied upon in support of the claim and a statement of how such claim has been calculated, including, where appropriate, the multiplier or range of multipliers used in the calculations; and

(f)        the amount claimed as damages for bereavement and / or loss of society.

For a Fatal Claim

a) Funeral expenses

b) Damages for bereavement, currently HK$253,500

c) Loss of dependency by dependants (if any), such as the deceased's children, spouse and parents.  This is calculated with reference to the actual income and expenditure of the deceased's household, taking into account the age of the dependants.

d) Loss of accumulation of wealth 

This is assessed with reference to the value of the estate of the deceased as of his death and the value of the estate but for the accident had the deceased died naturally.  The calculation is also made with reference to any savings plan, or the likelihood of savings, had the deceased died naturally.

e) Loss of services 

This claim is principally made by the surviving spouse and is based on the surviving spouse's evidence that the deceased had assisted in the household work, such as cooking and taking care of the children.  An award of this kind will be made if the surviving spouse can prove that the dependants (children or other family members) have suffered a financial loss of the gratuitous services rendered by the deceased spouse, which would have continued had he/she still been alive.  An example would be having to spend money to hire a domestic worker to handle the household work formerly undertaken by the deceased.

f) Other special damages (miscellaneous expenses) 

Other claims may include, for instance, damage to property and any related medical expenses.

g) Interest on the above damages

h) The claimant's legal costs

What is the function of a Coroner’s Court?

The function of the Coroner's Court is to inquire into the causes and circumstances of death where such death seems suspicious.  Family members of the deceased often have the mis-conception that the culprit could be identified and be punished in the same court; however this is not the case.

A Coroner's Court is a Court of enquiry and not a Criminal or a Civil Court. However, the evidence presented to the court may be useful in subsequent civil claims for negligence.

Injured Employees

If you are an employee who has been injured in a fire accident, you may pursue a personal injury claim through multiple channels. In addition to pursuing a general civil claim, you may apply to your employer for employees’ compensation under the Employees’ Compensation Ordinance, which covers medical expenses, rehabilitation costs, and loss of earnings arising from the work-related injury. This statutory compensation scheme operates independently, and you are not required to establish negligence on the part of the employer in order to make a claim.

At the same time, if you consider that the employer or any other relevant party was negligent in the incident, you may also consider commencing civil proceedings to seek additional damages.

Work-related injuries and the relevant compensations

Most of the matters that relate to work-related injuries and their respective forms of compensation are governed by the Employees' Compensation Ordinance (Cap. 282 of the Laws of Hong Kong) ("the ECO").

The ECO applies to all full-time or part-time employees who are employed under contracts of employment or apprenticeship, which include all categories of employees who have been impacted by the fire incident, such as domestic helpers working within residential units, personnel engaged in building management, building security, or building cleaning; and construction workers employed at the fire-affected site. 

Employers are liable to pay compensation for injuries that are sustained by their employees as a result of accidents that arise out of and in the course of employment.

Liabilities on Compensations

What is meant by "an accident arising out of and in the course of employment"?

According to section 5(4)(b) of the Employees' Compensation Ordinance, an accident to an employee is deemed to arise out of and in the course of employment, notwithstanding that the employee was at the time of the accident acting in contravention of any statutory or other regulation applicable to the relevant employment, or of any orders given by or on behalf of the employer, or that the employee was acting without instructions from the employer, if the act was committed by the employee for the purposes of and in connection with the employer's trade or business.

A Court of Final Appeal judgment ( LKK Trans Ltd v Wong Hoi Chung) has also pointed out that an employee's entitlement to compensation, in an accident arising out of and in the course of employment, is not affected by the employee's pre-existing disease.

The question which arises for decision in the appeal of the above case is as follows: Where an employee is injured in an accident at work resulting in permanent incapacity which is caused both by that injury and by a pre-existing disease, should the court limit the entitlement to Employees' Compensation by apportioning the incapacity attributable solely to the injury as distinct from the disease? The 5 judges in the Court of Final Appeal unanimously held that the answer to the above question should be NO.

Under what circumstances is the employer NOT liable to pay compensation for work injuries?

Employers are NOT liable to pay compensation in the following circumstances:

1. the injury neither results in permanent incapacity nor incapacitates the employee from earning full wages at normal work;
2. the injury is self-inflicted;
3. the death or incapacity results from the injury (including all occupational diseases which are specified in the ECO) that the employee has falsely claimed to be free of to the employer; or
4. the injury is caused by an accident that is directly attributable to the employee's addiction to drugs or alcohol and does not result in death or serious and permanent incapacity.

In addition, in any proceedings under the Employees' Compensation Ordinance in which it is proved that the injury is attributable to the serious and wilful misconduct of the employee, or that an injury by accident arising out of and in the course of employment is deliberately aggravated by the employee, any compensation claimed will be disallowed. The exception is that when the injury results in death or serious incapacity, on consideration of all of the circumstances the Court may award the compensation provided by the Ordinance or such part thereof as it thinks fit.

Compensation Items

My spouse died of an accident that happened during his work. What compensation is payable to me or my family members?

If an employee dies as a result of an accident  arising out of and in the course of employment, then the employer is liable to pay compensation for death to the surviving members of the family. Compensation for death is calculated with reference to the age and monthly earnings of the deceased employee as follows (section 6 of the Employees' Compensation Ordinance).

* In any event, the amount of compensation shall in no case be less than HK$514,510. Monthly earnings are subject to a maximum of $38,670 for calculating compensation in fatal cases.

The compensation shall be apportioned among the eligible members of the family of the deceased employee. In addition, the employer is liable to reimburse funeral and medical attendance expenses to the person who has paid such expenses, up to a maximum of $94,690.

For more details on the calculation of all relevant compensations, please contact the Employees' Compensation Division of the Labour Department (telephone hotline: 27171771; e-mail: enquiry@labour.gov.hk).

I was injured and disabled due to an accident that happened during my work. What compensation is payable to me or my family members?

This depends on the nature of the disability you are suffering. In general, the nature of the disability is classified into permanent incapacity or temporary incapacity.

a) Permanent Incapacity 

This is sub-divided into two categories:
i) permanent total incapacity; and
ii) permanent partial incapacity

Compensation in cases of permanent total incapacity is as follows (section 7 of the Employees' Compensation Ordinance) :

* In any event, the amount of compensation shall in no case be less than $584,220.

For permanent partial incapacity, the amount of compensation is as follows (section 9 of the Employees' Compensation Ordinance) :

(Amount of compensation due to permanent total incapacity) X (Percentage of loss of earning capacity)*

* The percentage of loss of earning capacity is assessed by the Employees’ Compensation Assessment Board according to the ECO.

b) Temporary Incapacity

An employee is entitled to receive periodical payments during the period of temporary incapacity up to 24 months. When the employee’s temporary incapacity lasts more than 24 months or a further period that the Court may allow (that further period must not exceed 12 months), the employee will no longer be entitled to periodical payments, and will be regarded as having suffered permanent (total or partial) incapacity with compensation assessed accordingly.

The periodical payments should be calculated as follows (section 10 of the Employees' Compensation Ordinance) :

(Monthly earnings at the time of the accident - monthly earnings after the accident) X 4/5

For more details on the calculation of all relevant compensations, please contact the Employees' Compensation Division of the Labour Department (telephone hotline: 27171771; e-mail: enquiry@labour.gov.hk).

Besides the above-mentioned compensations, am I entitled to other payments (e.g. medical expenses) for my work injury?

Medical Expenses 

Unless your employer has provided adequate free medical treatment to you, your employer is liable to pay medical expenses for the period during which you receive medical treatment from a registered medical practitioner or registered dentist until the attending medical practitioner or dentist certifies that no further treatment is required. Your employer must also reimburse the medical expenses to you within 21 days upon receiving the medical fee receipts.

The daily maximum amount of medical expenses payable is as follows: 

• in-patient treatment: $300 
• out-patient treatment: $300 (until 31 December 2025); $500 (from 1 January 2026); or 
• both in-patient and out-patient treatment on the same day: $370 (until 31 December 2025); $700 (from 1 January 2026).

Prostheses and Surgical Appliances (if any) 

If you require a prosthesis or surgical appliance due to a work injury, then your employer is also liable to pay:

• the initial costs of supplying and fitting the prosthesis or surgical appliance, subject to a maximum amount of $47,310; and

• the probable costs of repair and renewal of such an item for the 10 years after the initial fitting of the item, subject to a maximum amount of $143,320.

   

Report on work injuries or related accidents

What is the time limit for employers to report work-related accidents to the Labour Department?

For fatal work-related accidents, employers are required to report to the Labour Department within seven days after the accident. For occupational diseases that result in fatality, employers are required to report within seven days after the date of death. For non-fatal work-related accidents, employers are required to report to the Labour Department within 14 days after the accident.

If employers are not aware of the accidents that happened within the specified period, they must notify the Labour Department on appropriate form within seven days for fatal cases and 14 days for non-fatal cases, after the accidents come to their attention.

Any work-related accident must be reported by the employer irrespective of whether the accident gives rise to any liability to pay compensation. For more details on the reporting matters, please call the Labour Department's hotline at 27171771.

Employers who fail to report to the Labour Department are liable to prosecution and, on conviction, a fine of $50,000.

Can employees report work-related accidents to the Labour Department?

Employees can approach the Employees’ Compensation Division of the Labour Department (Tel. hotline: 27171771) to complete a Notification of Accident if they know that their employer has not reported the work-related accident to Labour Department. The Labour Department will then follow up the case.

Other matters on work injuries

What are the arrangements for paying compensation?

In general, there are four ways to pay the compensation to an employee (or a deceased employee's family members):

i) Direct Payment 

If the accident incapacitates the employee for not more than three days and does not result in permanent incapacity, the employer should make compensation for temporary incapacity on the employee's normal pay day.

ii) Direct Settlement 

For injuries that involve only temporary incapacity for a period exceeding three days but not more than seven days, the employer may directly agree with the employee about the compensation payable and make such payment on or before the employee's normal pay day.

iii) Settlement by Certificate 

For other cases, the Employees' Compensation Division of the Labour Department will issue to the employer and the employee a Certificate of Compensation Assessment (Form 5) stating the amount of compensation payable. The employer should pay the employee, within 21 days from the date of issue of the certificate, the amount of compensation, or any outstanding amount, that is stated in the certificate.

Employers who fail to pay the compensation are liable to a fine of $100,000.

iv) Settlement by Court 

For cases that should be settled by direct payment (i.e. those involving temporary incapacity for a period not exceeding three days) but remain unsettled, the injured employee can recover the compensation from the employer in the Small Claims Tribunal. Other compensation claims that cannot be settled in the above ways will be determined by the District Court.

If I cannot settle the work injury compensation matters with my employer amicably, then what is the time limit for bringing my case to the Court?

Section 14(1) of the ECO stipulates that an application to the Court for employees' compensation must be made within 24 months from the date of the accident that causes the injury. Therefore, if a case cannot be settled between the employer and the employee within a certain period, the employee concerned should contact the Employees' Compensation Division of the Labour Department (telephone hotline: 27171771; e-mail: enquiry@labour.gov.hk) as soon as possible. Staff of the Division will either refer the employee to the Legal Aid Department for further assistance, or assist the employee in registering a claim with the District Court or the Small Claims Tribunal.

If I am not satisfied with the amount of compensation granted according to the ECO, or I think that my employer has wrongfully neglected the safety measures, then can I claim more?

Under section 26 of the Employees' Compensation Ordinance, the Ordinance shall not limit or in any way affect any civil liability of the employer, where the injury is caused to an employee by the negligence, breach of statutory duty or other wrongful act or omission of the employer, or of any person for whose act or default the employer is responsible. Put in another way, in the above circumstances, the relevant employees can start a civil claim against their employer under common law for damages (compensation), in addition to their right under the Ordinance.

As explained in the case of Cathay Pacific Airways Ltd v Wong Sau Lai, employers are duty-bound at common law to take reasonable care for their employees' safety. This common law duty retains its importance despite the existence of a large body of work safety legislation.

The duty of care owed by employers to employees at common law is a single duty to take reasonable care for their employees' safety, including but not limited to the provision of the followings:

1. a safe place of work, including a safe means of access;
2. a safe system of work;
3. safe equipment;
4. safe and competent co-workers;
5. proper instructions and supervision; and (where called for)
6. adequate training.

You are strongly advised to consult your lawyers before taking any legal action.

Insurance

In this fire incident, some affected residents or their family members may hold life insurance, accident insurance, medical insurance, insurance against damage or loss of property, mortgage-related insurance, and other policies. These insurance policies may provide coverage for situations such as death benefits, medical expenses, household damage, or temporary uninhabitability. The following pages consolidate legal information related to insurance, covering life insurance, medical insurance, accident or personal injury insurance, and home insurance:

Life Insurance

Life insurance typically provides a cash sum on the death of an individual (i.e. the insured person) or on him/her becoming incapacitated in consequence of an injury or sickness. Some of the major types of life insurance are summarized as follows:

Term Life 

A "Term Life" policy pays a lump sum (also called "death benefit") only upon the death of the policyholder/the insured person. It does not provide any dividends or savings, but pure protection against death. Term policies are of a fixed duration, for example 10 or 20 years. If no claim is made, the policy will expire at the end of the term.

Whole Life 

A "Whole Life" policy pays a lump sum upon the death of the policyholder/the insured person or at the termination of the policy. It usually covers a longer and unfixed duration (usually up to age of 100 of the policyholder/the insured person) as long as the premiums are paid. Premiums for a whole life policy are usually fixed based on the age of the insured person when the policy is issued and they do not increase as time passes. Unlike a term life policy which may expire without paying out, a whole life policy would always pay out eventually. Hence, the premiums for a whole life policy are typically much higher than those of a term life policy.  Some whole life polices (known as “participating policies” or “with-profits policies”) provide dividends to policyholders, for the insurance company will share its excess profits with the policyholders. Premiums for such participating policies are typically higher than those of non-participating policies

Endowment 

An "Endowment" policy pays out a lump sum after a specific term (usually 5, 10 or 20 years) or if earlier, upon the death of the policy holder / the insured person. It is designed to provide the policyholder savings for future living, as well as a life insurance protection.

Investment-linked assurance schemes 

An investment-linked assurance scheme (ILAS) is a life insurance policy issued by an insurance company which provides the policyholder with life insurance cover plus investment options (usually funds).  Its policy value is determined by reference to the performance of the “underlying or reference funds”. While the policyholders have the ownership of the life insurance policy, the underlying assets (normally the underlying or reference funds) are owned by the insurance company.

The insured person has disappeared for several years. Can the beneficiary submit a claim for the death benefit under the relevant life insurance policy?

Firstly, if the beneficiary is in a legal position to do so (e.g. he/she is the spouse, parent or child of the insured person), that beneficiary must obtain a court declaration that the insured person is legally dead. At Common Law, a person is considered legally dead if that person has disappeared for 7 years or more, unless there is any evidence to the contrary.

Once the court issues a declaration that the insured person is legally dead, the beneficiary can submit a claim to the insurance company for the death benefit. Regarding the details on how to apply for a court declaration, please consult a solicitor.

Will medical reports issued by traditional Chinese medical practitioners be accepted by an insurance company when processing claims?

There is usually a standard provision in an insurance policy that medical reports are those issued by a registered medical practitioner of western medicine.

Thus, unless the policy specifically admits medical reports issued by registered Chinese medical practitioners, such reports will not normally be accepted for the purpose of claims.

If my insurance policy has lapsed and I try to "reinstate" my policy by paying the premiums again, can I submit any claims to the insurance company at this stage?

Normally, there is a "reinstatement" clause by which a life insurance policy that has lapsed (usually due to non-payment of premiums) can be reinstated. 

It will usually be less expensive to reinstate a policy than to purchase a new one. The premium for a new policy would likely be more expensive due to the fact that the insured person is older. Therefore, the person's risk profile would likely fall into a higher premium category.

The "reinstatement" clause usually permits the policyholder to reinstate the policy , provided that certain conditions are met with, for example:

• The insured person shows to the insurance company evidence of insurability (e.g. a satisfactory medical report). This condition is usually waived for lapses of less than two months;
• All the overdue premiums plus any interest payable are all paid up-to-date;
• Any policy loan (derived from the cash value of the policy) taken out must be either repaid or reinstated;
• The policy has not been surrendered to the insurance company in return for cash; and,
• The period lapsed must not be more than three years.

During the time in which the reinstatement of the policy is being processed, any claim submitted would be held pending the approval of the reinstatement application by the insurance company.

I have taken out several life insurance policies covering the same risk (on the life of the same person), can I claim for the death benefit under ALL life insurance policies?

For life insurance policies the position is that if there is nothing untoward (e.g. fraud or misrepresentation), the insurance company will be liable to pay in full regardless of there being other policies under which claims could also be made.

This position is in contradistinction with the case when a same risk under medical, personal injury and property insurance is covered by more than one insurance policy.   Please refer to the other question for details. 

Medical Insurance

What is Medical/Health insurance? 

Medical/health insurance is a type of insurance coverage that indemnifies the insured person for the cost incurred for surgeries, hospital care, dental services and other types of health care services. Depending on the terms of the particular insurance policy, the insurers may reimburse the insured person upon receiving a claim, or the insurers may pay the healthcare provider directly after the insured person has already received the medical services.

Different types of medical/health insurance 

It is important for consumers to understand basic concepts when shopping around for the most suitable medical/health insurance product that meets their needs.  Below are explanations of the common terminologies used on the market to describe different types of medical/health insurance:

• Hospital cash insurance refers to policies that provide payment for income replacement or for reducing the burden of hospital expenses during the duration of the insured person’s hospitalization. This payment may be calculated on a daily basis and is usually non-accountable (i.e. the hospital cash may be used on anything not necessarily related to hospital expenses).
• Personal accident insurance refers to policies that provide lump-sum payment upon the insured person suffering certain personal accidents, injuries, or death. Payment is usually contingent upon the “trigger” event, i.e. the occurrence of the “accident” as defined by the particular policy, and may cover reimbursements of medical cost.  Most personal accident insurances are able to provide a single indemnity to the insured if he/she suffers permanent disablement or accidental death which would help cover the daily living expenses of the insured and his/her family.

Critical illness protection insurance refers to policies that provide lump-sum payment upon the insured person falling ill to certain catastrophic illnesses or medical emergencies. Payment is not dependent upon incurred medical costs but is triggered by the occurrence of the specific illness covered under the policy. Coverage depends on the definition of critical illness and varies between products.

Will medical reports issued by traditional Chinese medical practitioners be accepted by an insurance company when processing claims?

There is usually a standard provision in an insurance policy that medical reports are those issued by a registered medical practitioner of western medicine.

Thus, unless the policy specifically admits medical reports issued by registered Chinese medical practitioners, such reports will not normally be accepted for the purpose of claims.

I have taken out several insurance policies covering the same risk (e.g. hospital confinement or household damage). Can I claim for the sum insured under ALL policies or just the actual expenses/losses only?

An insured person is not prevented by the law from purchasing any number of insurance policies covering the same item/person for the same risk.

However, there is normally an "other insurance" clause in the insurance policy that requires disclosure by the insured person of all the other insurance taken out. The "other insurance" must cover the same risk, the insurance coverage is additional, and the relevant policies are valid and subsisting.

Typically, the clause may set out the liability of the insurance company where the insured person has also purchased "other insurance", which could be categorised as follows :

• The "escape" provision whereby the insurance company will have no liability on the insured item/person in which the insured person has purchased other insurance;
• The "excess" provision whereby the insurance company will be liable for the amount of the excess insurance over and above the "other insurance" only; and,
• The "pro-rata" provision whereby the insurance company's liability will be limited to a proportion of the loss.

The above is the position as regards medical, personal injury and property insurance.

The provisions above intend to prevent the insured person from unfair enrichment under the Common Law. In other words, the total amount of the claims payable under the "primary insurance" (the subject policy) together with the "other insurance" (the other policies) should not exceed the fair value of the repair or replacement of the insured item (i.e. the total loss or all the expenses incurred).

Accordingly, you may claim under all of the policies. Depending on the terms of all your policies, your claims may be adjusted according to the express provisions under the "other insurance" clause in the way that the total payment will not exceed fair compensation for your loss. Example: You have taken out two medical insurance policies in which the sum insured for medical expenses is $10,000 for each policy (aggregate sum insured is $20,000). If your medical bill is $15,000, you can only obtain $10,000 from one of the policies and get $5,000 from the other one.

The position as regards life insurance policy is different.  Please refer to the other question for details.

Accident or Personal Injury Insurance

Accidents do happen all the time and may result in personal injury or even death. An accident insurance policy gives protection (such as reimbursement of medical expenses) should the policyholder suffer accidental death or bodily injury.

What is the general meaning of "accidental injury"? If I was injured but did not have a visible bruise or wound, can I still submit a claim for such an injury?

An accidental injury is a mishap that is unusual, fortuitous, unexpected or unforeseen resulting in damage or injury to the body.

The admission of a claim is based on medical certification by a licensed medical practitioner. Therefore, if your doctor, who is qualified, has certified that you have sustained an accidental injury, then regardless of whether or not there is a visible mark of your injury, your insurance company is bound to admit your claim based on the medical certificate.

What are the general meanings of "permanent disability" and "temporary disability"? I received a lump sum from an insurance company due to a permanent disability but surprisingly recovered two years later. Can the insurance company ask me to refund part of its previous payment?

A disability, in the context of injuries, refers to the inability to carry on with one's normal activities and occupation as a result of sickness or accident.

"Permanent disability" is a disability that the insured person will not recover from. "Temporary disability" is one that the insured person will recover from.

A medical certificate must be submitted together with the claim as evidence of the insured person's condition of disability. Payment of the benefit for permanent disability may be made at one time in one lump sum or over a period of time by a series of payments.

In the above question, you have received a lump sum. Unless the payment was conditional in which you are required to refund the payment if you recover partially or wholly in future, then the insurance company cannot ask for a refund.

In usual cases, the standard terms in an insurance policy would not have a condition requiring refund where a lump sum is payable. By contrast, where the benefit is payable by installments, there could be a condition that the insured person provides proof to the insurance company from time to time of his/her continuous permanent disability. It depends on the specific terms of the policy in question.

If I have received compensation from personal injury litigation against the wrongdoer, will it be used to set off part of my claim from my insurance policy?

There should be a "subrogation" clause which is also a standard term in an insurance policy.

Under this clause, if your insurance company has already paid your claim, your rights and remedies are "subrogated". In simple words, the insurance company is placed in your position and takes over all of your rights and claims against the defaulting party. Note that your insurance company can only exercise the right of subrogation if it has admitted and paid your claim under your insurance policy.

According to the facts in the above question, you have in effect exercised your rights and have already obtained compensation from the wrongdoer. In this case, the compensation may be offset against the liability of your insurance company under the policy it has issued to you.

Example : You have obtained $20,000 as compensation from the defaulting party via personal injury proceedings. However, your insurance company should pay you $40,000 according to your insurance policy. Since you have already received $20,000 from the wrongdoer, you will only get $20,000 from the insurance company.

The principle of subrogation is to prevent the insured persons from making a profit out of their insurance policies.

Insurance against Damage or Loss of Property

Loss of or damage to household contents such as furniture, decoration, electrical appliances and personal valuables can be insured. A typical example of such kind of insurance is a "Householder's Comprehensive" insurance policy which may provide cover in one package for: 

1. loss of or damage to the contents of a dwelling caused by fire;
2. loss of or damage to servants' property;
3. costs of alternative accommodation during the period in which the household is being repaired after a misfortune that is insured against;
4. liability to the public; and
5. personal accident benefits for the policyholder.

If my home and the furniture inside are damaged, will the insurance company compensate me for the full value of my property? Will the insurance company make a professional valuation or estimation before effecting payment?

Unless the claim is for a small amount, in which case the insurance company will fix the amount of compensation itself, the insurance company will usually appoint a surveyor to assess and confirm the damage and determine the fair compensation. In both cases, the amount of compensation will likely be less than the original purchase price. The ordinary wear and tear factor, and the deprecation, will normally be included in the calculation of the compensation.

However, where the insured property is a valuable article, the value of the property and the amount of compensation can be agreed beforehand. In the event of loss or total damage, the insurance company is liable to pay the agreed amount.

In the example of a painting or an antique, the insurance company may appoint an expert to determine the fair value of the painting/antique before agreeing to the insured amount.

I am an owner of a flat inside a building that has coverage for third party liability. Can I escape from all liability if visitors or occupiers were injured in an accident inside the building?

If the insurance of the third party's risk only covers the common areas of the building, the insurance company will only pay if the accident happened in these areas (but not inside your flat).

You will have to purchase your own occupiers' liability insurance for coverage of your own flat in respect of injuries to visitors in your flat. Most home-owner's insurance includes this cover.

I am not satisfied with the compensation and the conduct of my agent/insurance company. Shall I settle the dispute in court, or approach other organizations? Do the courts or other organizations impose a limit on the amount of any claim in each case?

Under the Code of Conduct for Insurers (Part IV: Management of Insurance Agents, Paragraph 35), an insurance company is required to have internal procedures for handling complaints against its agents. 

Therefore, you should file the complaint against your agent with your insurance company first.

If you are not satisfied with the way on how your insurance company handled your complaint against the agent, you should then file your complaint with the Insurance Authority.

As regards the complaint against your insurance company, you should also file the complaint with the company first. The Code of Conduct for Insurers (Part VII: Inquiries, Complaints and Disputes, Paragraph 48) requires insurance companies to have procedures in place to handle and attempt to resolve complaints by policyholders. If you are not satisfied with the way on how your insurance company handled your complaint, you should then file your complaint with the Insurance Authority.

If appropriate, you could, at the same time, file a complaint with the Insurance Complaints Bureau (“ICB”). This body is set up specifically to handle insurance complaints in an expedient and less costly way.  Generally speaking, the ICB can handle a complaint against an insurance company if it is of a monetary nature and the amount of money involved does not exceed HK$1,000,000.  Beware that you should file the complaint with the ICB within 6 months from the day of notification by the insurance company of its final decision against which you want to complain.

In relation to court proceedings, you may go to the following courts:

• The Small Claims Tribunal : for claims of $75,000 or less (to get more information about how to prepare for the trial, please click here);
• The District Court: for claims that exceed $75,000 but do not exceed $3,000,000;
• The Court of First Instance of the High Court, which has unlimited jurisdiction.

Taking your claim to any of the above courts should always be the last resort. You are recommended to seek legal advice before doing so.

Probate

If the deceased owned assets, the family must follow legal procedures to administer the estate in order to lawfully handle the deceased’s property and assets. These procedures include verifying whether a will exists, obtaining a “Grant of Probate” or “Letters of Administration” from the court, and subsequently distributing the assets. The following page provides basic information about estate administration:

Preliminary issues to be considered (with or without a Will)

When a loved one sadly passed away in the fire, they may have left behind an estate (the money in bank accounts, company shares, real estate and other assets, etc.). Regardless of whether the deceased had made a Will, generally a Grant of Representation will have to be obtained from the Probate Registry of the High Court of the Hong Kong Special Administrative Region before any of the deceased's assets in Hong Kong can be dealt with. A Grant of Representation acts as evidence of a person's right to deal with the estate of the deceased.

There is always a question as to which jurisdiction (which country's law) should govern the administration and succession of estate if some foreign elements are involved. For example, a deceased might have property in a foreign country. Another example is that a deceased, who is not a Hong Kong resident, leaves property in Hong Kong . Generally speaking, the following rules may provide a reference answer:

• Succession to "immovable property" (e.g. flat, building, land) is governed by the law of the place where the property is located. For example, if you (as a Hong Kong resident) own a flat in England, that flat will usually be governed by the succession law of England after your death.
• Succession to "movable property" (e.g. money, company shares, personal belongings) is governed by the law of the deceased's place of domicile as at the date of death. For example, the movable property of a deceased who is a resident of the United States is usually governed by the succession law of the United States, no mater where such property is located.

What are the differences between an estate with a Will and an estate without a Will (in relation to the Grant of Representation)?

A "Grant of Representation" is the collective term for a "Grant of Probate" or a "Grant of Letters of Administration".

A Grant of Probate is a Grant given to the executor (or executrix, in case of a female) named in the last Will of the deceased person. Whilst a Grant of Letters of Administration is a Grant given to an administrator who is the next-of-kin (e.g. the deceased's spouse, child or parent, etc.) where there is no Will, or where no executor has been appointed in the Will.

A "Personal Representative" is a general term for either an executor or an administrator. This Personal Representative has the authority to deal with the deceased's estate, such as to manage and distribute the relevant assets to the beneficiaries.

With a Will 

If the deceased died testate (i.e. he/she had made a Will appointing an executor), the executor is the only person who is entitled to apply for a Grant of Probate of the Will. If the executor does not wish to take up the appointment, or if no executor appointed by the deceased survives, then the person entitled to the residuary legacy in the Will has priority to apply for a Grant of Letters of Administration (with the relevant Will annexed). The person entitled to the residuary legacy is the person who can take the remainder of the deceased’s estate after all the other conditions of the Will have been met (i.e. other beneficiaries have been paid, and all the debts and administration expenses have been settled).

Without a Will 

If the deceased died intestate (i.e. no Will is found or if the Will has been revoked), the right of a person to apply for a Grant of Letters of Administration would be governed by the law of intestacy. Under rule 21 of the Non-Contentious Probate Rules (Cap. 10A of the Laws of Hong Kong), the order of priority is as follows:

1. the surviving spouse or the surviving partner or partners to a union of concubinage (e.g. the second wife (and the third….) taken during the life of the first wife) entered into before 7 October 1971;
2. the children of the deceased including any children born of a union of concubinage entered into before 7 October 1971, or the issue of any such child who has died during the lifetime of the deceased;
3. the father or mother of the deceased;
4. the brothers and sisters of the deceased or the "issue" of any deceased brother or sister of the deceased who has died during the lifetime of the deceased.

(Note: "Issue" has a special meaning in the succession law which is different from the daily usage. It means any descendants of a person.)

The maximum number of administrators (or adminstratrix in case of a female) of an estate is four . When there is a dispute between persons entitled to a Grant in the same degree (i.e. they are all equally entitled to apply for the Grant), an application has to be made to the High Court to determine who will be appointed as administrators.

The High Court also has the power to appoint a person who is not in the above hierarchy to administer the estate. This power is useful when the next-of-kin of the deceased, who would otherwise be entitled to be appointed as administrator, is under 21 years old or has insufficient mental or physical capacity to administer the estate.

One major difference between an executor and an administrator 

Although the powers of an executor and an administrator are almost the same, there is one major difference. The power of an executor stems directly from the Will. Therefore, his/her authority and duty as an executor starts from the very moment the testator (the "Will-maker") dies.

An administrator, on the other hand, receives the relevant powers from the Grant of Letters of Administration. Therefore, his/her power to act starts from the date of the Grant but not from the date of the death of the deceased.

Obtaining Grant of Probate (Death with a Will) v.s. Obtaining Grant of Letters of Administration (Death without a Will, i.e. Intestate)

Death registration

For those who sadly passed away in the fire, their closest relatives or other relevant persons are, in principle, responsible for registering the death within 14 days of its occurrence. However, because a fire is considered a non-natural cause of death, the deceased’s identity and cause of death must be confirmed by the police and the Coroner’s Court. As a result, a death certificate may not be issued immediately, and families may be unable to complete the registration within the usual time frame.

When applying for a Grant of Probate or Letters of Administration, a death certificate is generally required as supporting documentation. In this situation, families must wait until the relevant authorities have completed their investigation and formally issued the death certificate.

For more details about death registration, please visit the Immigration Department’s website.

Searching for a Will and gaining access to the deceased's safe deposit box in a bank

Whether or not a Will is left by the deceased would affect the application procedure for the Grant of Representation. The deceased's family members or legal representative must check carefully to see if the deceased had made a Will (or whether the Will on hand is the latest/last Will or not). Their duties include: checking all the personal documents of the deceased, asking the relatives and friends, and enquiring with the deceased's financial or legal advisers.

If the intended executor/administrator has retained a solicitor to obtain the Grant of Probate or Letters of Administration, the solicitor can conduct a Will Search through the Law Society of Hong Kong to find out whether or not the deceased has executed a Will through other solicitors in Hong Kong .

However, the Will Search is not conclusive since the deceased might have made a homemade Will. Most often, the deceased might have put his/her Will in a safe deposit box in a bank. Therefore, another starting point for searching for a Will is to check the deceased's safe deposit box.

How to get access to the deceased's safe deposit box in a bank?

Applying for a "Certificate for Inspection" 

With effect from 1st April 2007, the Secretary for Home and Youth Affairs has delegated his power as regards access, inspection and inventory taking of a deceased person' safe deposit box to the Director of Home Affairs.

Either the executor under the Will, the intended administrator having priority to take out a Grant of Letters of Administration, or a surviving renter of the safe deposit box will need to apply for a "Certificate for Necessity of Inspection of Bank Deposit Box" (certificate for inspection) from the Home Affairs Department. For more information regarding the application procedure, please refer to the website of the Home Affairs Department.

On issue of the certificate of inspection, the holder of the certificate for inspection ("the Holder") will need to make an appointment with the Secretary for Home Affairs for the inspection of the deceased's safe deposit box. Such inspection must be carried out in the presence of a bank staff member and two public officers authorized by the Secretary for Home Affairs.

If the safe deposit box is rented jointly with another renter, the surviving renter (if he/she is not the Holder) will need to be present at the inspection. If a Will is found, the Holder (if he/she is the named executor) can take the Will away after making a copy of the same and placing the copy in the safe deposit box.

Taking inventory 

The inventory will be prepared by the Holder, with assistance from the public officers whenever necessary. The inventory will be verified by the public officers present at the inspection, and a copy of the inventory will be kept by the bank concerned and the Secretary for Home Affairs for a period of six years. The original inventory will be kept by the Holder.

If a Will is found in the safe deposit box and: i) the Holder is not the executor named in the Will, or ii) there is no executor appointed in the Will and the Holder is not the surviving renter, the Holder is not permitted to remove the Will or prepare the inventory. The safe box will then be closed or sealed immediately by the bank staff after a copy of the Will is made and handed over to the public officers present. The copy of the Will will be kept by the Secretary for Home Affairs for six years.

When and how can the executor/administrator remove the items inside the deceased's safe deposit box at a bank?

Solely rented safe deposit box 

After the taking of inventory, any removal of documents from the box before a Grant of Representation must be authorised by the Home Affairs Department (details can be found on the website of the Home Affairs Department - Estate Beneficiaries Support Unit) . Generally speaking, only documents relevant to an application for a Grant of Representation, or personal items relating to a person other than the deceased and urgently required by that person, can be removed. Documents and articles of value will not generally be permitted to be removed.

Jointly rented safe deposit box 

If the jointly rented safe deposit box has a survivorship agreement with the bank, after the inventory has been prepared, the surviving renter (if he is the executor/administrator or has obtained the written consent of that executor/administrator) can apply to the Home Affairs Department for authorisation to remove the contents of the safe deposit box. However, the surviving renter will be able to remove all contents of the safe deposit box without authorisation from the Home Affairs Department after 12 month from the date of death of the deceased.

How to collect and to take inventory of the deceased's personal belongings if they are not kept inside the deceased's safe deposit box at the bank?

In the unfortunate event that the deceased passed away in the fire, the home and personal belongings may have been severely damaged or lost. The executor of the will or the intended administrator is still responsible to take that inventory. This can be done in the following ways:

• First, identify any personal belongings that can still be preserved or recovered (for example, items returned by government departments, insurance companies, or other organizations).
• Gather information on assets held by the deceased with banks, insurance companies, or other institutions.
• Verify with family members or other relevant persons the deceased’s major assets and any potential debts.

The inventory will be included in the estate’s schedule of assets and liabilities and submitted to the Probate Registry.

Grant of Probate

Eligibility

Order of priority

R. 19 of Non-Contentious Probate Rules (Cap. 10A) provides for the order of priority as follows:

(i) the executor;

(ii) any residuary legatee or devisee holding in trust for any other person;

(iii) any residuary legatee or devisee for life;

(iv) the ultimate residuary legatee or devisee

or

where the residue is not wholly disposed of by the will, any person entitled to share in the residue,

or

the personal representative of any such person subject to r.25(3) of Non-Contentious Probate Rules (Cap. 10A) (A living person is preferred to a personal representative);

(v) any specific legatee or devisee

or

any creditor,

or

the personal representative of any such person subject to r.25(3) of Non-Contentious Probate Rules (Cap. 10A),

or

where the estate is not wholly disposed of by the will, any person who does not have an immediate beneficial interest in the estate, but may have a beneficial interest in the event of an accretion of the estate;(vi) any legatee or devisee, whether residuary or specific, entitled on the happening of any contingency,

or

any person having no interest under the will of the deceased but who would have been entitled to a grant if the deceased had died wholly intestate.

Number

S.25 of the Probate and Administration Ordinance (Cap. 10) governs the number of grantees to be allowed. Probate shall not be granted to more than four persons.

Capacity

A person will not be appointed as an executor if he: 

1. is under 21 years old;
2. suffers from mental/ severe physical disability to the extent that renders him incapable of managing his own affairs (see r. 33 of Non-Contentious Probate Rules (Cap. 10A)); or
3. in prison.

The Court generally views that an insolvent person is unsuitable to be appointed an executor.

The executor is missing or refuses to take up the appointment. Can another person apply for a Grant? What does he need to do?

Yes, if the person has an interest in a deceased’s estate.

You may apply for the issuance of a citation by the Probate Registry to the executor under s.30(1) of Probate and Administration Ordinance (Cap. 10).  The executor will then be required to accept or renounce his executorship.

You should lodge a draft citation to the Registrar. R.45 of the Non-Contentious Probate Rules (Cap. 10A) provides for the formal requirement of the citation.

If the executor is missing, depending on the circumstances, you may call upon the executor to :

• accept or refuse probate using Form C2.2. The relevant provision is 46(1) of the Non-Contentious Probate Rules (Cap. 10A);
• take probate or to take a grant using Form C2.2. The relevant provision is under 46(3) of the Non-Contentious Probate Rules (Cap. 10A)); or
• propound a will and use Forms C2.1 and C2.2 with necessary modifications.

If the executor refuses to take up the appointment, you should use Form C2.2 to call upon the executor to accept or refuse probate under r.46(1) of the Non-Contentious Probate Rules (Cap. 10A).

You should also lodge a draft affidavit for the Registrar’s approval.

After the draft citation and the draft affidavit are approved, you should:

• file and personally serve on the executor i) the citation; and ii) the sworn affidavit and
• enter a caveat if it has not been previously entered. The relevant provision is 45(3) of the Non-Contentious Probate Rules (Cap. 10A);

If the executor fails to appear or prosecute his application for a grant within the time limit, you may apply by inter-partes summons returnable to the Registrar for the appropriate order. The relevant provisions are r.46(7)(a) and (c) of the Non-Contentious Probate Rules (Cap. 10A).

If the executor fails to appear or propound a will within the time limit, you may apply by motion for an order for a grant as if the will were invalid. The relevant provision is r.47 of the Non-Contentious Probate Rules (Cap. 10A)). In such a case, the Judge may make an order for a grant contrary to the terms in the will.

If the executor resides out of Hong Kong and refuses to assume the office, how can he renounce the right to probate?

The procedure is provided in s.29 of Probate and Administration Ordinance (Cap. 10).  He can either:

• Renounce orally on the hearing of any petition or probate action by counsel on his behalf; or

• in writing signed by him and attested by a solicitor or by any person before whom an affidavit may be sworn. (Renunciation of Probate should use Form W2.1 and of Administration with the Will annexed, Form  W2.2; renunciation of letters of Administration should use Form L2.1)

   

Procedures

Documents in support of the application (for a Grant of Probate): 

• The death certificate of the deceased (please refer to the Immigration Department's webpage for details of death registration);
• The original Will of the deceased, plus one copy;
• A certificate that shows the relationship of the applicant to the deceased where this relationship is clearly expressed in the Will, e.g. a spouse will lodge a marriage certificate, and a son or daughter will lodge a birth certificate. If the Will identifies the applicant by way of an Identity Document number, present a copy of that Identity Document;
• If none of the above certificate showing the relationship is available, an Affirmation or Affidavit of Identity is required. The affirmation must be executed in the presence of a Commissioner for Oaths by someone who is not related to the applicant and the deceased by blood, marriage or adoption, but who has known the applicant and the deceased well for more than 5 years.

Specified Forms 

• Affirmation or Affidavit by Executor (Executor's Application): W1.1a
• Affirmation or Affidavit verifying the Schedule of Assets and Liabilities (For Grant): N2.1

The Probate Registry has specific forms for use in regard to the above-mentioned documents and procedures. These must be adhered to with such variations or additions as circumstances may require.

Samples of the relevant forms are available upon request at the counter of the Probate Registry at LG3, High Court Building, 38 Queensway, Hong Kong. They can also be downloaded from the Judiciary website.

Although an application for a Grant of Probate or Letters of Administration can be made in person, you should consider seeking legal advice if there are complicated issues or disputes involved in the estate (e.g. the deceased has a foreign property).

Can probate be applied for if the Will is lost and there are no available copies of the Will?

Where the will is lost and there are no available copies of the will, an application for an order admitting proof of other evidence of its contents can be made to the Registrar under r.53 of Non-contentious Probate Rules (Cap. 10A). The Court may direct that the application be made on summons to the Registrar or judge or to the court on motion: r.60 of Non-Contentious Probate Rules (Cap. 10A).

The party propounding the will bears the burden to rebut the default presumption that the will was revoked by destruction by the deceased in his lifetime.

If the will is lost, the grant made is limited until the original or a more authentic copy is proved.

Can probate be applied for if the original Will is lost and there is only a copy of the Will?

Where the original will is lost, mislaid, or not available, and when an applicant is applying to admit a copy, a rebuttable presumption of revocation arises.

In order to have the copy will admitted to probate, an application must be made to the Registrar under r.53 of the Non-Contentious Probate Rules (Cap. 10A). 

An ex parte application must be filed to rebut the presumption.

An applicant who seeks to admit the copy will to proof has the burden of proving that it has not been revoked by adducing evidence of surrounding circumstances, e.g. declaration of unchanged affection or intention to rebut the presumption. The evidence may vary according to the circumstances, including relevant matters like the character of the custody, the character of the testator, his relationship with the beneficiaries under the will and other next of kin since the making of the will up to his death, the contents of the will, and whether he had any cause to revoke it.

If the Court admits the copy will to probate, the order normally includes a direction that the grant is limited until the original will or a more authentic copy will has been proved.

If a person (other than the executor) keeps the Will and refuses to give it to the executor, what can the executor do?

Under r. 49(2) of Non-Contentious Probate Rules (Cap. 10A), the executor may make an ex parte application to the Registrar under s.7(3) of Probate and Administration Ordinance (Cap. 10) for the issue of a subpoena to bring in a will.  The application shall be supported by an affidavit setting out the grounds of the application, and if any person served with the subpoena denies that the will is in his possession or control, he may file an affidavit to that effect. It is not a prerequisite to obtain a court order before submitting this application.

Letters of Administration (in case of intestacy)

Eligibility

Order of priority / Order of Entitlement

When a deceased died without a will, his next-of-kin who has a beneficial interest in the estate (“next-of-kin with beneficial interests”) shall be entitled to a grant of administration in the order of priority as set out in r.21 of Non-Contentious Probate Rules (Cap. 10A), namely:

1. the surviving spouse or the surviving partner or partners to a union of concubinage entered into before 7 October 1971;
2. the children of the deceased including any children born of a union of concubinage entered into before 7 October 1971, or the issue of any such child who has died during the lifetime of the deceased;
3. parents;
4. siblings or the issue of any deceased siblings of the deceased who has died during the deceased’s lifetime;
5. grandparents; and
6. uncles and aunts of the deceased, or the issue of any deceased uncle or aunt of the deceased who has died during the lifetime of the deceased.

If one can prove that all persons in the preceding order are either deceased or have waived their eligibility, he or she can apply for the grant of administration.

E.g. A has passed away. A’s wife is alive but refused to apply for Letters of Administration.  A’s only son is ineligible to apply for A’s Letters of Administration until he has proven that A’s wife has waived her right to apply for A’s Letters of Administration.

Without any person having a beneficial interest in the estate, a grant may be made to the Official Administrator. 

Alternatively, a grant may be made to the creditor or to any person who, notwithstanding that he has no immediate beneficial interest in the estate, may have a beneficial interest in the event of an accretion of the estate, or is, by virtue of s.3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481), entitled to apply to the court for an order under s.4 of that Ordinance.

In general, the court makes a grant of letters of administration to the person(s) whom it considers will most effectively administer the estate.

Choice between persons entitled in the same degree

R.25 of Non-Contentious Probate Rules (Cap. 10A) offers some guidance as to how the Court makes a selection between those entitled:-

1. A grant may be made to any person entitled without notice to any other persons entitled in the same degree.
2. Any dispute between persons entitled to a grant in the same degree should be resolved by bringing a summons before the Registrar. As a result, the person issuing such summons shall enter a caveat, and the Registrar will not allow any grant to be sealed until the dispute is resolved.
3. A living person is preferred to the personal representatives of a deceased person who would, if living, be entitled in the same degree.
4. A person not under disability is preferred to an infant entitled in the same degree.

If a personal representative of a spouse is involved,

• Where a spouse is beneficially entitled to only part of estate of the deceased as ascertained at the time of the application for grant with the other next-of-kin, the other living next-of-kin with beneficial interests would be preferred to the personal representative of the spouse.
• Where a spouse is beneficially entitled to the whole estate of the deceased as ascertained at the time of the application for grant, the personal representative of the spouse is preferred to the next-of-kin with beneficial interests.

Number

s.25 of Probate and Administration Ordinance (Cap. 10) governs the number of grantees to be allowed. It ranges from one to four, except where life or minority interests are involved, in which case a minimum of two individuals are required unless the grantee is a trust corporation.

Capacity

A person will not be appointed as an administrator if he:

1. is under 21 years old;
2. suffers from mental/ severe physical disability to the extent that renders him incapable of managing his own affairs (see r. 33 of Non-Contentious Probate Rules (Cap. 10A); or
3. in prison.

The Court generally views that an insolvent person is unsuitable to be appointed an administrator.

The person entitled to the Letters of Administration in priority is missing or refuses to apply for the Letters of Administration. Can another person apply for it? What does he need to do?

Please refer to the section regarding “Order of priority / Order of Entitlement”.

If he is entitled under r.21 of Non-Contentious Probate Rules (Cap. 10A), he must first clear off all persons entitled to a grant set out in the categories mentioned above.

In the given scenario, he can clear off all person with prior entitlement to a grant by a Citation.

Rr.45 to 48 of Non-Contentious Probate Rules (Cap. 10A) provide for the procedures on the issuance and service of citations and entry of appearance by a person cited as well as the application for an order for a grant upon nonappearance.

He should lodge a draft citation (Form C2.2) to be settled by the Registrar (r.45(1)) as well as a draft affidavit for approval.

After the draft citation and the draft verifying affidavit are approved, he should file the citation together with the properly sworn affidavit and at the same time enter a caveat (if it has not been previously entered).

The citation and verifying affidavit must be personally served (r.45(4)). Other substituted modes of service will only be granted if it is shown that personal service cannot be effected after reasonable attempts have been made.

When the time limited for appearance has expired, if the Citee fails to appear or prosecute his application for a grant with reasonable diligence, he may apply by inter-partes summons returnable to the Registrar for an order for a grant to himself as provided by r.46(7)(a).

If he is not entitled under r.21 of Non-Contentious Probate Rules (Cap. 10A), he may apply for the Court to invoke its power under s.36 of Probate and Administration Ordinance (Cap. 10) to pass over a person entitled as an administrator to him.  He must prove that the potential administrator is clearly unsuitable e.g. he is missing or refuses to apply for the Letters of Administration.

My father’s cousin died without a will. He was unmarried and had no children. His siblings do not want to apply for the Letters of Administration due to their old age. Can my father or I apply for the Letters of Administration?

Under r.21 of Non-Contentious Probate Rules (Cap. 10A), the persons having a beneficial interest in the estate are preferred to be granted the administration. In default of any such person it shall be granted to the Official Administrator.

My father and I are issues of the uncle and aunt of the deceased. 

Assuming that the deceased only leaves siblings and a cousin (i.e. my father), pursuant to s.21(1)(iv) of Non-Contentious Probate Rules (Cap. 10A), the deceased’s siblings have immediate beneficiary interests and are entitled to a grant to administration.

Under ss.21(1) and (2) of Non-Contentious Probate Rules (Cap. 10A), my father and I do not have a beneficial interest in the estate.

Therefore, the deceased’s siblings have immediate beneficial interest in the estate, but my father and I do not have immediate beneficial interest in the estate.

However, my father and I may have beneficial interest in the estate by virtue of s. 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481). If we were maintained, either wholly or substantially, by the deceased, immediately before the death of the deceased, my father and I would be entitled to apply to the court for an order under s. 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) and might have beneficial interest in the estate.

If my father and I have grounds to establish beneficial interests under s. 3 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481), then we must prove that the deceased’s living siblings have waived their rights to the grant, and apply for the grant of administration by virtue of s.21(4) of Non-Contentious Probate Rules (Cap. 10A).

Otherwise, the administration shall generally be granted to the Official Administrator under r.21(3) of Non-Contentious Probate Rules (Cap. 10A).

However, we may also apply for the Court to invoke its power under s.36 of Probate and Administration Ordinance (Cap. 10) to appoint us to be the administrators of the estate.  We must prove that the potential administrators are clearly unsuitable e.g. they refuse to apply for the Letters of Administration or that it is more convenient to do so.

Procedures

Documents in support of the application (for a Grant of Letters of Administration) 

1. A properly executed oath in the appropriate specified form (see below).
2. The death certificate of the deceased
3. A certificate showing the relationship of the applicant to the deceased (e.g. a photocopy of the marriage certificate of the applicant and the deceased, or the birth certificate(s) of the child(ren) of the deceased, or the birth certificate of the deceased for a parent applicant)
4. A copy of the HKID cards of the deceased and the applicant
5. If the situations stipulated in sub-sections (a) to (f) of 38(1) under Non-Contentious Probate Rules (Cap. 10A) arise, affidavit of justification for sureties (Form M3.1) and surety's guarantee (Form M3.2).

Specified Forms

The appropriate forms should be used for the applicants’ oath:

• a surviving spouse including a partner to a union of concubinage (Form L1.1a, L1.1b, L1.2a, L1.2b);
• children (Form L1.3a, L1.3b);
• parents (Form L1.4a, L1.4b);
• siblings (Form L1.5a, L1.5b);
• grandparents (Form L.1.6a, L1.6b in the capacity of the lawful grandmother/grandfather of the deceased); and
• uncles and aunts (Form L.1.6a or L1.6b in the capacity of the lawful uncle/aunt of the deceased).

If the testator publicized the existence of his Will during his lifetime but the Will cannot be found after he died, can the Letters of Administration be applied for?

Letters of administration of the estate of a deceased person are granted where the deceased died wholly intestate.

When an applicant applies for Letters of Administration, he is required to prove intestacy.  If the testator has publicized the existence of his Will during his lifetime, the applicant may not be able to swear to the intestacy of the deceased.

Instead, he may apply for an order admitting proof of other evidence of its contents can be made to the Registrar under r.53 of Non-Contentious Probate Rules (Cap. 10A). The Court may direct that the application be made on summons to the Registrar or judge or to the court on motion: r.60 of Non-Contentious Probate Rules (Cap. 10A).

The party propounding the will bears the burden to rebut the default presumption that the will was revoked by destruction by the deceased in his lifetime.

The grant made is limited until the original or a more authentic copy is proved.

Letters of Administration (with Will annexed)

Eligibility

Order of priority

R.19 of Non-Contentious Probate Rules (Cap. 10A) governs the order of priority of persons entitled to an administration with the will annexed, namely:

(i) the executor;

(ii) any residuary legatee or devisee holding in trust for any other person;

(iii) any residuary legatee or devisee for life;(iv) the ultimate residuary legatee or devisee

or

where the residue is not wholly disposed of by the will, any person entitled to share in the residue

or

the personal representative of any such person subject to r.25(3) of Non-Contentious Probate Rules (Cap. 10A) (A living person is preferred to a personal representative);

(v) any specific legatee or devisee or any creditor or the personal representative of any such person subject to r.25(3) of Non-Contentious Probate Rules (Cap. 10A) 

or

where the estate is not wholly disposed of by the will, any person who does not have an immediate beneficial interest in the estate but who may have a beneficial interest in the event of an accretion to the estate;

(vi) any legatee or devisee, whether residuary or specific, entitled on the happening of any contingency, or any person having no interest under the will of the deceased who would have been entitled to a grant if the deceased had died wholly intestate.

Choice between persons entitled in the same degree

In general, the court makes a grant of letters of administration to the person(s) whom it considers will most effectively administer the estate.

R.25 of Non-Contentious Probate Rules (Cap. 10A) offers some guidance as to how the Court makes a selection between those entitled:

1. A grant may be made to any person entitled without notice to any other persons entitled in the same degree.
2. Any dispute between persons entitled to a grant in the same degree should be resolved by bringing a summons before the Registrar. As a result, the person issuing such summons will enter a caveat, and the Registrar will not allow any grant to be sealed until the summon have been finally dealt with.
3. A living person is preferred to the personal representatives of a deceased person who would, if living, be entitled to a grant in the same degree.
4. A person not under disability is preferred to an infant entitled in the same degree.

Number

Administration shall not be granted to more than four persons in respect of the same property.  If there is a minority or if a life interest, administration shall be granted to a trust corporation (with or without an individual as co-administrator), or to not less than two individuals: s.25(1) of Probate and Administration Ordinance (Cap. 10).

Capacity

A person will not be appointed as an administrator if he: 

1. is under 21 years old;
2. suffers from mental/ severe physical disability to the extent that renders him incapable of managing his own affairs (see r. 33 of Non-Contentious Probate Rules (Cap. 10A); or
3. in prison.

The Court generally views that  a bankrupt (i.e. a person who has been adjudged bankrupt) person is unsuitable to be appointed an administrator.

Procedures

Documents in support of the application (for a Grant of Letters of Administration)

1. A properly executed oath in the appropriate specified form (see below).
2. The death certificate of the deceased
3. The original will and a clean copy will
4. A certificate showing the relationship of the applicant to the deceased (e.g. the marriage certificate of the applicant and the deceased, or the birth certificate(s) of the child(ren) of the deceased, or the birth certificate of the deceased for a parent applicant)
5. A copy of the HKID cards of the deceased and the applicant
6. If applicable, Affidavit of justification for sureties (Form M3.1) and surety's guarantee (Form M3.2)

Specified Forms

• Affirmation/ Affidavit by administrator with will (sole executor has died/ renounced): Form W1.3a/ W1.3b
• Affirmation/ Affidavit by administrator with will (for Grant de bonis non): Form S.3.2a/ S.3.2b. Please refer to the section regarding Grant de bonis non.

Usually no requisition is raised about the proof of the sound mind of the testator if the will was executed before solicitors, clerks or doctors.

However, if the will does not include a proper attestation clause, an affidavit of due execution should be filed (Form W3.1) at the time of the application (see r.10 of Non-Contentious Probate Rules (Cap.10)).

If the will is not engrossed by typewriter or computer, but done in handwriting, an affidavit (Form W3.2) should be filed to inform the Court as to who wrote the will – whether it was the deceased or somebody else on his behalf.

If the situations stipulated in sub-sections (a) to (f) of r.38(1) under Non-Contentious Probate Rules (Cap. 10A) arise, affidavit of justification for sureties (Form M3.1) and surety's guarantee (Form M3.2).

Special Grant

Grant de bonis non

When the grantee himself has died without fully administering the estate of the deceased, unless there is a chain of executorship, a further or a new grant is required to appoint a personal representative in respect of the unadministered estate.

Under s.34 of the Probate and Administration Ordinance (Cap. 10), chain of executorship applies when the deceased executor dies after proving the deceased testator’s will and the executor obtains a grant of probate to the deceased executor’s will. If the executor of the deceased executor proves the unbroken chain, he is the executor of every preceding testator.

Eligibility

A grant de bonis non may be made to any person who is equally entitled as the previous grantee.

If the deceased grantee was the only person taking a beneficial interest in the residuary estate of the deceased (e.g. the only person entitled to the estate on an intestacy, or the sole residuary legatee and devise named in a will), a grant de bonis non will be made to his personal representative. 

The personal representative of the deceased grantee should first apply for a ‘leading grant’ in the estate of the deceased grantee before applying for the grant de bonis non.

Where the deceased was survived by a surviving spouse, by virtue of r.21(5) of Non-Contentious Probate Rules (Cap. 10A), the personal representative of a person in any of the classes mentioned in r.21(1) and in r.21(2) shall be preferred to the personal representative of a spouse who had died without taking a beneficial interest in the whole estate of the deceased as ascertained at the time of the application for the grant.

The general rule applies: a living person is preferred (except by direction of a registrar) to the personal representative of a deceased person who, if living, had an equal title to a grant.

Procedures

To apply for the grant de bonis non, it must be established that there is no chain of executorship and all executors named in the will of the deceased must be cleared off, i.e. by reciting their death or renunciation.  This must be done by the appropriate form of affirmation or affidavit (Form no. S3.1a (or S3.1b) (without will) or S3.2a (or S3.2b) (with will)),  that all executors have either passed away or renounced their office as executor.

FAQ

My father died intestate many years ago. My mother did not obtain a Letter of Administration. My mother just died intestate. What should I do to administer the estates of my father and mother? 

Since grants have not been made in respect of the estates of my father and mother, I must apply for them.

Under r.21(1)(ii) of Non-Contentious Probate Rules (Cap. 10A), I have a beneficial interest in the estates of my father and mother and am entitled to the respective grants to administration.

For the relevant procedure, please see the section regarding Letter of Administration – Procedures.

Grant durante absentia

Where a personal representative is residing abroad, an application can be made for a grant of special administration if no previous grant has been made.

Eligibility

The grant will usually be made to the attorney of the person entitled to the grant.

If there is a minority, or if a life interest arises under the will or intestacy, two attorneys or a trust corporation, with or without an individual in addition, must be appointed to obtain the grant: s. 25 of Probate and Administration Ordinance (Cap. 10).

Procedures

Under r. 54 of Non-Contentious Probate Rules (Cap. 10A), an application for an order for a grant of special administration under section 37 of the Ordinance where a personal representative is residing outside Hong Kong shall be made to the court on motion.

Is there a time limit to apply for a Grant of Probate or Letters of Administration?

No, there is no time limit. If all required documents are in order, the application should be submitted as soon as possible.  However, except with the leave of the Registrar, no grant of probate or of administration with the will annexed shall issue within 7 days of the death of the deceased and no grant of administration shall issue within 14 days of the death of the deceased: r.5(3) of Non-Contentious Probate Rules (Cap. 10A).

If the applicant subsequently finds more assets of the deceased after submitting the documents to the Probate Registry, what should he/she do?

If the applicant discovers additional assets which have not been included in the verifying affirmation, the applicant should file a Corrective Affirmation/Affidavit verifying the Additional Schedule of Assets and Liabilities (Before Grant).

For cases where a Grant has already been obtained, the original Grant should be delivered, along with the Corrective Affirmation/Affidavit verifying the Additional Schedule of Assets and Liabilities (After Grant), to the Probate Registry.

The specified forms can be found in the Judiciary's website.

If the value of the deceased’s estate does not exceed $50,000, will the application procedure be different?

With effect from 1st April 2007, under the delegated authority from the Secretary for Home and Youth Affairs, the Director of Home Affairs takes over from the Commissioner of Inland Revenue the provision of various services for estate beneficiaries through the establishment of an "Estate Beneficiaries Support Unit".

If the value of the estate does not exceed $50,000 and the estate consisted wholly of money, the person who is entitled to apply for the Grant of Probate or Letters of Administration ("the Applicant") can apply for the issue of a confirmation notice from the Home Affairs Department.

The applicant must submit the application to the Estate Beneficiaries Support Unit at 3/F, Southorn Centre, 130 Hennessy Road, Wan Chai, Hong Kong with the following documents:-

1. an application form (HAEU5);
2. an affirmation/affidavit (Form HAEU5-A) which declares that the total value of all properties beneficially owned by the deceased does not exceed $50,000 and the estate is wholly made up of money; and
3. a Schedule of Money of the deceased person in Hong Kong as at the date of death in duplicate (Form HAEU5-S) which sets out the details of the estate.

The following supporting documents (originals and photocopies) must also be submitted:

1. the identity card/passport of the deceased person;
2. the death certificate of the deceased person;
3. the identity card/passport of the applicant;
4. the last will of the deceased person, if any;
5. any document(s) evidencing the relationship between the deceased person and the applicant, e.g. marriage or birth certificate, if the applicant is not the executor of the deceased person;
6. the letter(s) of renunciation duly executed by the person(s) entitled in higher priority to administer the estate, if applicable;
7. the death certificate(s) of the person(s) entitled in higher priority to administer the estate, if applicable;
8. any document(s) evidencing the relationship between person(s) named under (f) and/or (g) and the deceased person, if applicable; and
9. fixed deposit receipt(s)/bank statement(s)/bank passbook(s) in respect of all bank account(s) of the deceased person, showing the bank account balance as at the date of death of the deceased person and those for the last three months before death.

If the affirmation/affidavit is in order, the Director of Home Affairs (under authority delegated by the Secretary for Home and Youth Affairs) will issue a confirmation notice within 12 working days.

The applicant shall then visit the Estate Beneficiaries Support Unit at a scheduled time slot to swear/affirm in an affidavit as to the truthfulness and correctness of the affidavit and the schedule exhibited by the affidavit and collect the confirmation notice and a duplicate copy of the Schedule of Money.

The holder of the confirmation notice will be exempted from the intermeddling provisions and deal with the estates without any grant.

If the banks agree to release the balance in the accounts to the Applicant upon issuance of the confirmation notice, it will not be necessary for the Applicant to proceed further with an application to the Probate Registry either for summary administration or for a Grant of Probate/Letters of Administration. Please note that the banks have the discretion to decide whether to release the balance in the bank accounts stated in the schedule annexed to the confirmation notice.

If more assets are found later resulting in the value of the estate exceeding $50,000, the Applicant should notify the Director of Home Affairs and, if a confirmation notice has been issued, return it for cancellation.  Then, the applicant should follow the application procedure for summary administration or a Grant of Probate/ Letters of Administration (as the case may be).

Details of the application procedure can be viewed from the website of the Home Affairs Department (Estate Beneficiaries Support Services).

What happen if the value of the estate exceeds $50,000 but does not exceed $150,000?

For small estates not exceeding $150,000, and consisting only of bank accounts and/or Mandatory Provident Fund money, the Public Application Section of the Probate Registry can normally help the Applicant to summarily administer (in a simple way) the estate without a Grant of Representation. However, the Applicant(s) must be over 21 years of age.

How does one avoid intermeddling of the estate (handling the estate without permission) after abolition of the Estate Duty?

Before the abolition of estate duty, as the Applicant needs to obtain estate duty clearance before filing the application for a Grant with the Probate Registry, the Inland Revenue Department acted as the gate keeper to prevent possible intermeddling of the deceased's estate.

After the abolition of estate duty, provisions have been made in the laws of Hong Kong to safeguard against intermeddling of an estate. These provisions will be similar to those used in the estate duty era:

• Intermeddling of the deceased's estate is an offence;
• A person would be liable to a fine of $10,000 plus and additional penalty equal to the value of the assets intermeddled if:
  that person intermeddles the estate or the income therefrom and either fails to file an application for summary administration (for cases where the value of the estate does not exceed $150,000) or fails to file an application for a Grant of Probate or Letters of Administration within 12 months from the death of the deceased; OR that person intermeddles with the estate after the 12-month's period without a Grant of Probate or Letters of Administration or summary administration.

For more information on this matter, you can go to the Home Affairs Bureau's webpage.

The executor is missing or refuses to take up the appointment. Can another person apply for a Grant? What does he need to do?

He may apply for a Duplicate Grant in person or through a firm of solicitors in Hong Kong.

He shall attend the Probate Registry directly and file such application by way of an affidavit:

1. explaining how the Grant was lost and/or misplaced;
2. providing reason(s) that a Duplicate Grant is necessary; and
3. undertaking to the Court to return the Duplicate Grant to the Probate Registry if the “original” Grant is found later.

Furthermore, he has to apply for and file a certified copy of the Schedule of Assets and Liabilities (including the Additional Schedule) and the Will (if any); and pay the necessary administration fees.

What are citations and caveats to a Will?

A citation is used to force some action or step in relation to the taking of the grant to the estate. It is issued by the Probate Registry and takes four main types:

1. a citation to accept or refuse a grant, governed by r.46 of the Non-Contentious Probate Rules (Cap. 10A);
2. a citation to force executors who are entitled to apply for a grant, but who have not yet done so, to apply for a grant governed by r.46 of the Non-Contentious Probate Rules (Cap. 10A);
3. a citation to clear off prior right to a grant governed by r.46 of the Non-Contentious Probate Rules (Cap. 10A);
4. a citation to propound the will, governed by r.47.

A caveat is a means of preventing a grant of probate or administration from being sealed without the caveator's knowledge. It remains valid for six months, after which it becomes ineffective unless renewed. However, a caveat can be renewed repeatedly every six months, potentially impacting the estate for many years. Strictly speaking, a caveat should only be lodged to prevent the making of a grant in the event where there is a dispute of validity of the grant or the entitled person, but they are often used to safeguard third-party claims against the estate, which may be considered an abuse of the process.

What can be done if the Will is found after the Letters of Administration is granted?

An application should be made for an order to revoke the Letters of Administration under s.33 of Probate and Administration Ordinance (Cap. 10).  The applicable ground is that a grant had been obtained by a false or incorrect statement because a will has been discovered after a grant of administration.

Administration of Estate

REMINDER: Administration of estate often involves complicated issues that do not have easy answers. The below is merely a summary of the general principles and the common issues. It cannot possibly cover each and every scenario. If in doubt, you are strongly advised to seek legal advice.

Payment of Debts and Funeral Expenses

First thing first, the executor/administrator needs to arrange payment or make provisions for the payment of the deceased’s debts, funeral and other expenses in relation to the estate.

Debts

Debts can be incurred both before and after the death of the deceased. For example, the deceased might have used his/her credit card to purchase goods and died before the balance becomes due. An example of a debt incurred after death is the management fee of a property that is owned by the deceased. All debts have to be ascertained and paid, or provisions for payment must be made, before the estate is distributed to the beneficiaries.  The personal representative has to take reasonable steps to make sure that there is no outstanding debt owed by the estate before distribution. The safe way to do so is by advertisement in the Gazette (and newspaper), asking the potential creditors to come forward to the personal representative with the particulars of their claim in at least 2 months’ time: s.29 of Trustee Ordinance (Cap. 29).

Insolvent Estate

“Insolvent” means that the assets of the estate are not enough to pay for the debts of the estate. If the estate is insolvent, the personal representative must take extra care. After settling the funeral expenses and other testamentary expenses, he or she must observe the priority set out in section 63 and schedule 1 of the Probate and Administration Ordinance (Cap. 10) and the Bankruptcy Ordinance (Cap. 6) when he tries to pay off the deceased’s debt.

A failure to observe the proper order can render the personal representatives personally liable. As such, in case of insolvency, legal assistance is advisable.

Maintenance Claim

Note also that there may be claim under Inheritance (Provisions for Families and Dependents) Ordinance (Cap. 481) within 6 months of grant. More specifically, families or dependents of the deceased may claim against the estate if they contend that they should be given a share (if not provided under the will or intestacy) or a large share than the share that they are now given under will or intestacy.

Taxes

If the deceased died before the abolition of estate duty in 2005 and the net value of the estate is over $7,500,000, estate duty is payable. No matter when the deceased dies, an estate will need to provide for salaries tax, profits tax and property tax due by the deceased up to the date of his/her death.

Other Expenses

Other expenses to be paid out of the estate, apart from funeral expenses, include: the expenses incurred for obtaining legal advice, the costs and expenses incurred in the application for the grant of representation and the Court fees.

Timing of Distribution

There is no hard rule. But in general it may be advisable to wait and see if there is any outstanding claim against the estate for a period of 12 months from the deceased’s demise (the so-called “executor’s year”) before full distribution is effected. 

What property constitutes assets?

Property formed part of the estate

Real property: i.e. landed properties. A personal representative needs to register the grant of representation at the Land Registry before he/she can effectively deal with the property.

Chattels: items such as cars, watches and jewelries etc.

Bank accounts: the personal representative should present the grant of probate/letters of administration to the bank.

Insurance policies: If the beneficiary of the policy is the deceased himself, the personal administrator will need to collect the insurance money, if any, according to the policy. If it is a life policy whose beneficiary is someone other than the deceased (e.g. deceased’s families), it does not fall within a part of the estate. See below.

Mandatory Provident Fund/Other Pension Schemes: For MPF, please refer to the website of the Mandatory Provident Fund Schemes Authority for more information. For other pension schemes, you need to refer to the scheme documents and contact the person-in-charge accordingly.

Company Shares: The personal representative does not step into the shoes of the deceased and become a member (i.e. shareholder) of the company automatically upon grant. He or she needs to ask the company to register him or her as a member: s.158 of Companies Ordinance (Cap 622).

Property not formed part of the estate

Property held in joint tenancy: it passes to other joint tenant(s) the moment the deceased dies. All the other joint tenant(s) need(s) to do is to register the death certificate of the deceased joint tenant.

Nominated property: e.g. some pension policy states that the benefits will pass to another person upon the pensioner’s demise.

Life insurance policies written in trust for a named beneficiary: the insurer would pay the insurance money to the beneficiary directly.

Powers of the Personal Representatives in Dealing with the Assets

Collecting & Securing Assets

In particular, a person representative has the power to commence legal proceedings to collect assets for the estate, including but not limited to obtain a freezing order against the party holding the assets so that that party cannot dispose of those assets until court order. There may be costs consequences to the personal representative personally though, especially if the claim is actually a claim involving beneficiaries. E.g. if the beneficiaries consider the personal representative having unduly initiated or defended a legal action, they may ask the court not to allow the representative to be reimbursed from the estate for the legal costs. To make sure he or she will be entitled to recovering the costs from the estate, the prudent way to do in case of doubt is for the personal representative to obtain authorization from the Court before commencing or defending the action (such authorization is called “Beddoe order”).

Likewise, a personal representative has the powers to defend the estate in a legal action and to reach settlement with the claimant. The same costs concerns set out above apply more or less equally to the defence of a claim.

In collecting the assets, the personal representative must act with due diligence, meaning to take reasonable steps to collect all assets due to the deceased as quickly as practically possible.

Powers To Dispose of the Assets

Generally speaking, a personal representative has the powers to sell the assets of the estate for the purpose of paying debts or expenses of the estate or for the purpose of distribution.

Exceptions include specific gift under a will (i.e. the deceased gave a specific asset to a specific beneficiary). In such case, unless the overall assets of the estate is not enough to pay off its debt and hence the specific gift has to be sold too, the beneficiary has the right to insist on taking that particular gift.

Another exception is a spouse’s right of first refusal over the matrimonial property. It means that, unless, as mentioned, the assets of the estate are not enough to pay off its debt, a spouse has the right to take the matrimonial property in satisfaction of his/her share under intestacy. If the matrimonial property is worth more than his/her share under intestacy, he or she may pay the shortfall to the estate in return for the whole of the matrimonial property.

Other than exceptions such as above, a beneficiary of the estate generally does not have the right to insist on keeping a particular asset unsold. 

Powers of Management of the Assets, e.g. postpone distribution, delegate, insure, mortgage/charge, investment

Time for distribution: There was a saying of “executor’s year” which expects a personal representative to distribute the assets according to the will or intestacy in one year after the deceased’s demise. But it is far from a hard rule. There are many circumstances under which the representative may postpone full distribution such as ongoing claim by a third party claimant against the estate. A representative may make partial and proportional distribution if the circumstances require and/or permit. But the personal representative must act honestly on the timing of distribution and must not postpone unreasonably.

Delegation: Generally speaking, insofar as reasonable, a personal representative may delegate his powers to an agent, e.g a solicitor or an accountant when the estate is complicated: s.27 of Trustees Ordinance (Cap 29). 

Insurance, mortgage/charge, investment: If there are reasonable grounds why distribution cannot be effected immediately, e.g. minority interest, outstanding debt or litigation or unripeness to sell, a personal representative may exercise powers to manage such as power to insure, to mortgage or to invest.

Distribution of Assets

Obtaining receipts 

It is prudent for the personal representative to require the beneficiary to issue a signed receipt upon distribution so as to avoid unnecessary disputes down the road.

Failure of gifts 

There are a number of situations in which a gift under a will is said to have failed, i.e. the beneficiary cannot get what the will intends to give him/her. E.g. ademption, abatement and lapse.

Ademption happens when a specific gift under a will no longer exists at the time of the deceased’s demise. In such case, the intended beneficiary will not get that specific gift. One exception is that the specific gift changes in form only. E.g. The deceased said in the will “I give my shares in ABC company to my Son” and the company changes its name to XYZ before his demise. The Son will get the shares of XYZ.

Abatement happens when the remaining assets of the estate is not enough to pay off its funeral expenses and debts. In such case, the specific gift under the will have to be used to pay off those expenses and the debts too and the beneficiary will not be able to get that gift.

Lapse happens when the intended beneficiary under the will dies before the deceased. But if the beneficiary is a descendent of the deceased, then the gift will go to the issue of that deceased beneficiary under s.23 of the Wills Ordinance (Cap. 30).     

Income and interest           

Generally speaking, if in his/her will the deceased gives a specific gift, e.g. a specific apartment or a specific stock, to a beneficiary, the beneficiary is entitled also to the income of the gift since the demise of the deceased, e.g. the rent generated by that apartment and dividend given by the company.

Generally speaking, if such deceased gives a general gift of e.g. HK$1,000,000 to a beneficiary, the beneficiary is entitled to interest from the end of the 12 months after the deceased’s demise (i.e. the so-called executor’s year).

Duty to Account

A personal representative has the duty to account to the beneficiaries for the estate. The account shall: 

(1) show the opening balance (including capital assets) and closing balance;

(2) give details of movement of assets, incomes and expenditure of the estate;

(3) give details of the whereabouts of all properties (including cash) of the estate which the personal representative is duty bound to administer; and

(4) support the account with documentary evidence.

The duty to account does not arise only at the end of the administration. A personal representative has to account to the beneficiaries as to the aforesaid from time to time during administration e.g. every 3, 6 or 12 months. Failure to render proper accounts without reasonable excuses is a ground for the Court to remove such representative from office.

Duty of Not to Waste and Duty as a Fiduciary

A personal representative has a duty to administer the assets of the estate according to the law with due diligence. He or she may be liable personally for the resulting waste if he/she failed such duty by wilful misconduct or negligence etc.

As a fiduciary, a personal presentative is bound to do his best for the benefit of the estate. If he/she profit himself/herself from the estate, e.g. use the estate’s money to invest for his/her own profit, he/she will liable to account for the profit so earned.

If the personal representative steals form the estate, he/she may further be criminally liable.

Liabilities Towards Third Parties

A personal representative may assume liability towards third party if he/she commits breach of contract in the name of the estate or commit act of negligence in the course of administration. The personal representative would be personally liable for the said contractual breach or tortious wrong to that third party and, depending on the circumstances, may or may not be entitled to reimbursement by the estate.

Remuneration

In general, there is no remuneration for a personal representation. Exceptions include where the will expressly providing so, e.g. by way of a gift if the executor is a family member. In case where a professional executor is appointed instead, a charging clause would usually be included in the will which authorizes that professional executor to charge at a certain rate for the work carried out for the estate.

FAQ

What if the estate includes a business?

The personal representative’s duty is to distribute the shares of the company to the beneficiaries (if the will so specifically gifts) or to sell the shares and distribute the sale proceeds to the beneficiaries according to will or the laws of intestacy. In general, a personal representative has no powers to hold on to the shares of the deceased and run the company indefinitely. The most he can do is to run it for a short period in order to sell it at a good price. The situation may be different if the will specifically asks the personal representative to run the deceased’s business for a period, or if all the beneficiaries so agree.

If the deceased made no Will, how can the relevant estate be distributed?

The order of priority under the law relating to the entitlement of the deceased's estate is similar to the order relating to the eligibility to apply for a Grant of Letters of Administration (please refer to the relevant question and answer).

In reality, it often happens that 2 or more parties who are entitled to the assets survive and may claim the deceased's estate together. The followings are some of the usual scenarios. For details, please refer to section 4 of the Intestates' Estates Ordinance.

(A) The deceased only leaves a spouse

If the deceased leaves a spouse, but leaves no issue, parent, brother or sister of the whole blood (the same parents), or issue of a brother or sister of the whole blood, then the surviving husband or wife is absolutely entitled to the residuary estate (i.e. the whole sum after deduction of the deceased's debts, taxes, funeral, legal and administration expenses from the estate).

(Note: "Issue" has a special meaning in the succession law which is different from the daily usage. It means any descendants of a person.)

(B) The deceased leaves a spouse and issue

If the deceased leaves a spouse and issue, whether or not survived by his/her parents or siblings, the surviving spouse could take the following first:

1. all of the deceased's personal chattels;
2. a sum of $500,000 from the residuary estate.

After the aforesaid $500,000 is paid out, if there is any remaining sum, it would be divided in half. One half will be distributed to the surviving spouse and the other half will be divided equally amongst the child/children of the deceased.

(C) The deceased leaves a spouse, parents and siblings, but no issue

If the deceased has issue, the deceased's parents, brothers and sisters cannot obtain anything even if the deceased's spouse has predeceased (die before) the deceased.

Only if the deceased has no issue can the parents and siblings have a share in the deceased's estate, even if his/her spouse survives . The surviving spouse could take the following first:

1. all of the deceased's personal chattels;
2. a sum of $1,000,000 from the residuary estate.

After the aforesaid $1,000,000 is paid out, if there is any remaining sum, it would be divided in half. One half will be distributed to the surviving spouse and the other half will be distributed to the surviving parent(s).

On the other hand, if one or both parents survive, the siblings cannot obtain a share of the deceased’s estate. They will only be entitled to part of the estate (after deduction of the spouse's entitlement) if the deceased leaves no issue and no parents.

(D) The deceased leaves issue, but no spouse

If the deceased has issue but no surviving spouse, the residuary estate will be distributed to the issue in accordance with the following rules:

If the deceased’s children all survived him/her, the residuary estate will be divided equally among them, and the grandchildren will not receive any portion of the estate.

However, if a child has predeceased the deceased and leaves behind child(ren) of his/her own, the child(ren) of that predeceased child will take up the share that would have been given to that predeceased child (if more than one, divided on an equal basis).

In the event that a child has predeceased the deceased without leaving any child(ren) of his/her own and the deceased has more than one surviving child, the predeceased child’s share of the estate will be equally divided among other surviving children.

(E) The share of "illegitimate children"

An illegitimate child means a child whose natural parents are not married in a manner that the laws of Hong Kong recognize. For details of legal marriage, please go to the topic of "Matrimonial Matters".

Before the 19th June 1993, illegitimate children were not entitled to succeed to their deceased father's estate if their father died intestate (without a Will). Illegitimate children could succeed to their mother’s estate on her intestacy, but only when there were no surviving legitimate children. If the deceased parent had a Will and he gave "his children" a gift or a sum of money to share, the illegitimate children were not entitled to share in the gift.

However, this position has been changed by the Parent and Child Ordinance. Illegitimate children can now enjoy the same succession rights as legitimate ones if their parents die after 19 th June 1993 .

One point to note is that for those adopted children (i.e. they have been adopted by persons through a legal adoption process), they have the same status as the natural children. In other words, they shall be treated as the children of the adopter but not the children of any other persons.

For more information regarding the distribution of estate, please go to the "case illustration".

Can a surviving spouse acquire the matrimonial property?

If the intestate leaves a flat in which the surviving spouse was residing at the time of the intestate’s death, the surviving spouse has the right to ask for that flat (commonly called matrimonial property) to be given to him/her in satisfaction of his/her share under intestacy. If the matrimonial property is worth more than his/her share under intestacy, he/she may pay the shortfall to the estate in return for the whole of the matrimonial property. The surviving spouse can make this request in writing to the personal representative within 12 months after the first taking out of representation.

Can a beneficiary refuse to take up the entitlement to an estate?

A person will not be forced to take up if he or she does not want to. In such circumstances, the entitlement will go to the residuary estate and be distributed according to the will and/or intestacy laws, as may be applicable. For more information about the distribution of estate under the law of intestacy, please see “If the deceased made no will, how can the relevant estate be distributed” and “What if there are no beneficiaries to distribute to? E.g. what if all the beneficiaries under the will have predeceased the deceased and have left no issue, and the deceased has no surviving families under the laws of intestacy?”. 

Is there a time limit for the distribution of the estate?

As discussed, the starting point is within 12 months from the demise of the deceased. But there are many circumstances that may reasonably delay the distribution. If, however, the personal representative delay unreasonably for a prolonged period, it may constitute a ground for removal of that representative from office by the Court.

What is a deed of family arrangement? When to use it?

The beneficiaries of an estate may come up with an agreement as to how the estate be distributed. For example, some may prefer taking up the deceased’s stocks and some prefer cash and some prefer landed properties. As long as all the beneficiaries agree, such agreement is generally enforceable. For legal reasons, it is advisable to put the agreement in a deed and have every beneficiary sign it. If you have doubt about the form or substance of such deed, seek legal advice.

The allocation of estate has been clearly set out in a Will. Can this prevent all the disputes which may come out during the distribution process?

One of the main functions of a Will is to provide instructions for distributing the estate according to the intention of the testator (person making the Will, i.e. the deceased). Even if the intention of the testator is clearly stated in the Will, it may still be challenged.

For example, someone who could be a beneficiary under intestacy, or who is not satisfied with his share of the estate under the deceased's Will, could claim that the Will is invalid on the basis that the deceased did not have the mental capacity to make the Will, or was unduly influenced by a third party in making the Will. Any aggrieved party may bring legal action against the executor to contest the validity of the deceased's Will.

A man could have made a Will that left everything to his legitimate children with no provision for his surviving wife or illegitimate child whom he had been maintaining before his death. Under such circumstances, the surviving spouse could make a claim for a share of the estate, and the illegitimate child could claim for maintenance to be provided for him out of the estate pursuant to the Inheritance (Provision for Family and Dependants) Ordinance. Whilst the law in Hong Kong confers absolute testamentary freedom on individuals, it also recognizes the need for an individual to make financial provisions from his estate for his spouse and those who had been dependent on him financially during his lifetime. For more details on the matter, please refer to the relevant question and answer.

To a lesser extent, other practical difficulties may arise. An old lady stated in her Will that her diamond necklace is to be left to her granddaughter. This necklace could not be found in the old lady's home or safe deposit box after her death. Usually the executor is a member of the family or a close and trusted friend of the whole family. How can this executor balance his/her duty to make the requisite inquiries on behalf of the granddaughter and yet maintain a harmonious relationship with the deceased's other family members?

An executor who does not wish to prove the Will personally for whatever reason (e.g. awkward family relationships or time constraints), could appoint a Hong Kong registered trust company to take out a Grant of Representation on his/her behalf, subject to the consent of the beneficiaries of the Will.

If the deceased had a credit card debt, should the intended personal representative clear the debt first or apply for a grant of probate/letter of administration first?

It may take months or, in complicated cases, more than a year to obtain grant. Meanwhile, the interest of a credit card debt can be prohibitively high. There is no objection for the intended personal representative to repay the debt out of pocket first, and be reimbursed by the estate subsequently. This is especially so for an executor, for his duty and power comes from the will directly. The grant of probate is a proof of the will only and not itself the source of duty/power.

If there are two personal representatives, can one of them deal with the estate alone?

In general, each and every personal representative can deal with the assets of the estate alone and the transaction so conducted would be binding on the estate.

Exceptions include conveyancing of landed property, which can only be made with the concurrence of all personal representatives.

If I am a beneficiary under intestacy or under a previous will, or if I have reasons to believe that I am a beneficiary under the latest will, can I ask the executor under the latest will to disclose to me the contents of the will? If the executor refuses to do so, what can I do?

You may make an application under section 7 of the Probate and Administration Ordinance (Cap 10) to compel the executor to so disclose.

If the personal representative fails to administer the estate properly, what can the beneficiary do?

The beneficiary may commence an administration action to compel the personal representative to do his/her work properly. In appropriate cases, the beneficiary may also apply to Court for the removal of the personal representative and for a replacement administrator to be appointed instead.

If a beneficiary is of the view that the personal representative has wasted the assets the estate by misconduct or negligence and is minded to recover those assets from the personal representative, there may be certain statutory limitation period applicable (usually but not necessarily 6 years). Exactly when the limitation starts to run and when it expires can be technical and complicated. It is advisable to seek legal advice as soon as possible. 

If the personal representative fails to pay off the deceased’s debts before distribution, will he or she be personally liable for the debts?

Probably. That is why it is prudent for the personal representative to advertise and wait for at least 2 months as set out in this Part.

Can the executor/administrator initiate a litigation to recover assets of the estate?

Yes. But beware of the costs consequences. See point 3 of this Part and question 18 of FAQ.

Is the personal representative personally liable for the costs arising out of the litigation in relation to the deceased's estate?

If the personal representative is ordered by court to pay the opposing party legal costs, the opposing party may enforce the costs against the personal representative personally. Whilst the personal representative may seek to be reimbursed by the estate his/her costs or the opponent’s costs that he/she is ordered to pay, the beneficiaries may oppose on the ground that the personal representative have unreasonably initiated or defended the claim. Whenever in doubt, especially when the opponent is one of the beneficiaries, the prudent way to do is to first seek a Beddoe order before initiating or defending a claim. See point 3 of this Part.

What if there are no beneficiaries to distribute to? E.g. what if all the beneficiaries under the will have predeceased the deceased and have left no issue, and the deceased has no surviving families under the laws of intestacy?

The assets of the estate will go to the government. It is called “bona vacantia”, meaning, ownerless property.

Inheritance (Provision for Families and Dependants) Ordinance

In general, a person has the testamentary freedom to decide by his/her will as to how to distribute his/her assets after he/she dies. Absent will, the estate will be distributed by the laws of intestacy as discussed. In certain circumstances, however, the Court may intervene under the captioned ordinance when families or dependents of the deceased contend that they should be given a share (if not provided under the will or intestacy) or a larger share than the share that they are now given under will or intestacy.

Applicability

It applies only to a deceased who is domiciled in Hong Kong or has been ordinarily resident in Hong Kong at any time in the 3 years immediately preceding his death.

In other words, even if the deceased leaves behind substantial assets in Hong Kong, the captioned ordinance remains inapplicable if the above domicile/residence requirement is not satisfied.

Who may apply?

Most typically, applicants are either the spouse of the deceased or infant or disabled child of the deceased where the deceased (1) did not want to pay maintenance to divorce his/her spouse and decided to disinherit the spouse by will instead; or (2) tried to disinherit his/her children born out of his/her previous marriage for the benefit of his/her later marriage.

The possible scope of applicants is much wider though. Any person who, immediately before the death of the deceased, was being maintained either wholly or substantially by the deceased may apply. This includes ex-spouse, lover, adult child, godchild or even parents and siblings who were so maintained before the deceased’s demise.

What does the Court consider?

1. The financial resources of the estate;
2. The current and future financial resources and needs of the applicant(s) and of the beneficiaries;
3. The obligations and responsibility that the deceased had toward the applicant(s) and the beneficiaries;
4. Disability, if any, of the applicant(s) and of the beneficiaries;
5. Conducts of the applicant and other persons (e.g. deceased and beneficiaries) that the Court consider relevant; and
6. If the applicant is the spouse, the Court would consider the application more or less like an application for ancillary relief under divorce (i.e. maintenance).

What order that the Court may make?

It may be order for periodic payment, lump sum or order for transfer of property.

When to apply?

Within 6 months after grant of representation. This is a very rigid deadline. Late application will not be entertained at all unless with exceptional reasons.

Videos for reference

• Law of Succession: Intestacy
• Law of Succession: Probate

Death Inquest

How do family members get in touch with the Coroner’s Court?

The Coroner’s Court office is on 9/F, Tower A, West Kowloon Law Courts Building, 501 Tung Chau Street, Sham Shui Po, Kowloon. Family members may write to that address or call 3916 6204 for enquiries.

Autopsy Procedures

Under what circumstances will the Coroner order an autopsy? Can family members object to an autopsy or request one?

The Coroner is likely to order an autopsy if the cause of death is unclear. The final decision whether to order an autopsy belongs to the Coroner, but family members can express their views in the following ways.

• If family members do not want an autopsy: When family members attend the public mortuary to identify the deceased, a forensic pathologist will interview them. Family members should tell the pathologist clearly that they wish to ‘waive’ the autopsy. The pathologist will pass the request to the Coroner. Family members may also request to address the Coroner directly. In practice, the Coroner typically declines to ‘waive’ the autopsy if the medical cause of death or the circumstances surrounding the death remain uncertain. If the Coroner decides to order an autopsy, the Mortuary Officer can help family members raise their objection with the Coroner.         
• If family members believe an autopsy is necessary but the Coroner refuses to order one: Family members can address the Coroner to explain why they believe an autopsy is needed, and ask the Coroner to reconsider the decision.

Who conducts the autopsy? Can family members arrange an independent pathologist to observe the procedure or conduct a separate, second autopsy?

Autopsies are performed by a registered pathologist employed by the government, the Hospital Authority, or a university in Hong Kong. The Coroner may appoint a specific pathologist to conduct the autopsy. Family members can arrange a registered doctor of their choice to observe the autopsy.

Family members may request a second autopsy from the Coroner, and if approved, they may ask to hire their own pathologist. 

Are family members entitled to a copy of the autopsy report?

The pathologist who conducts the autopsy prepares the autopsy report and may release it with the Coroner’s permission. Alternatively, family members may obtain a copy by applying to the Coroner.  

Inquests: Powers, Process, Family Rights, and Costs

Process and Timing

Will the Coroner hold an inquest into the deaths from the Tai Po Fire?

The Coroner has the power to hold an inquest but is not required to do so. If the cause and circumstances of the deaths are already clear (for example, from the report of the Independent Committee established by the government), the Coroner can decide there is no need for a separate inquest.

If the Coroner declines to hold an inquest, family members or other ‘properly interested persons’ (for example, the deceased’s doctor or lawyer) may apply to the Court of First Instance for an order requiring the Coroner to hold an inquest. The Secretary for Justice also has the power to order the Coroner to hold an inquest.   

Is there a time limit for holding an inquest?

The law does not provide a clear deadline for holding an inquest. For example, the inquest into the 2012 Lamma Island ferry collision only began in May 2025, almost 13 years after the incident. 

In practice, the Coroner will decide whether to hold an inquest after related police investigations, criminal trials, and official reports are completed.   

Can the Coroner pause or postpone an inquest because of related criminal proceedings?

If someone is charged with an offence connected with the death (such as murder) before the inquest concludes, or if the Coroner believes that a person who has appeared in the inquest, for example as a witness, may have committed such an offence, the Coroner may pause or postpone the inquest until the related criminal proceedings are completed. 

How does an inquest relate to criminal investigations conducted by the police? 

Police investigate possible crimes, while an inquest investigates the cause of and circumstances surrounding the death. The two processes are separate. 

The inquest relates to police investigations in multiple ways. Police collect evidence during their investigations which may then be used in the inquest. Police also prepare and submit to the Coroner a death investigation report of the deceased. This report helps the Coroner decide whether to hold an inquest. 

However, police investigations are not a substitute for an inquest. Even after police investigations and subsequent criminal proceedings, the Coroner may still hold an inquest.

Powers and Proceedings of the Coroner’s Court

What powers does the Coroner’s Court have?

The Coroner may:

• order an autopsy;
• order a body to be dug up (exhumed), buried, or cremated;
• investigate deaths;
• hold an inquest;
• order the police to search premises and seize relevant items;
• summon witnesses to give evidence or produce documents at an inquest;
• issue death certificates; and
• make recommendations to prevent similar deaths in the future at an inquest.

The Coroner cannot decide who is criminally guilty (such as of murder) or order anyone to pay compensation. Those decisions belong to the ordinary civil or criminal courts.

What happens at an inquest?

An inquest follows clear procedures. The Coroner formally opens the inquest in open court. The Coroner then calls witnesses one by one who are examined by, for example, the family members’ lawyers. After hearing all the evidence, the Coroner summarises the facts and, if the inquest has a jury, explains the law to and directs the jury. Finally, the Coroner or the jury deliver ‘findings’, answering the questions of the identity of the deceased, how, when and where the deceased died, and the cause of and circumstances connected with the death. Common findings include natural cause, accident, misadventure, suicide, lawful killing, unlawful killing, or an open verdict.

Family Rights

What rights do family members have at an inquest?

Family members are not just spectators at an inquest. They can play an active role in the process. Family members, along with other properly interested persons, have the right to:

• receive notice of the date, time, and place of the inquest;
• attend the pre-inquest review and the inquest proper in person;
• be represented by a lawyer or speak on their own behalf during an inquest;     
• question witnesses directly or through their lawyer; and
• see and receive copies of key documents (such as autopsy reports, witness statements, and expert reports). 

Can family members submit their own evidence and expert reports at an inquest?

Family members (and other properly interested persons) can submit their own evidence and expert reports at an inquest, provided that the evidence and reports are relevant. Relevance means that these materials can help determine the cause of and circumstances connected with the death. The Coroner will decide whether these materials are relevant and whether to accept them at an inquest. 

Witnesses, including expert witnesses, can receive an appropriate allowance. 

Are family members entitled to challenge or cross-examine witnesses during an inquest?

Family members can examine witnesses during an inquest personally or through their lawyers. 

Costs

What costs are involved in an inquest, and who is responsible for paying them?

The inquest itself is paid using public funds. Family members do not have to pay court fees.   

If family members choose to hire their own lawyers, they will have to pay the relevant legal fees themselves. 

In addition, if family members want to obtain copies of the autopsy reports, witness statements, transcripts, or any other documents from the inquest, they have to pay a fee.

Findings and Legal Implications

What findings can the Coroner or jury give at the end of an inquest, and what are the implications of these findings?

The Judiciary publishes on its website a list of the possible findings that the Coroner or jury may reach at the end of an inquest. Relevant findings include natural cause, accident, misadventure, lawful killing, unlawful killing, and an open verdict (meaning the evidence is insufficient to establish other findings). A full list is accessible here: https://www.judiciary.hk/en/court_services_facilities/cor.html.         

Such findings by the Coroner or jury is a statement on the cause of and circumstances connected with the death. It does not (and cannot) indicate any person is criminally guilty or civilly liable to pay compensation. Even a finding of ‘unlawful killing’ does not mean that someone is guilty of, say, murder. A full criminal trial is required to decide guilt. 

Can the Coroner or jury, at an inquest, point to any person as being legally responsible—either criminally or civilly—for the death? 
The Coroner and jury cannot, at an inquest, point to any particular person as being criminally (for example, guilty of murder) or civilly (for example, liable for negligence and compensation) responsible for the death. These matters can only be decided in separate criminal or civil trials. An inquest only answers the questions of the identity of the deceased, how, when and where the deceased died, and the cause of and circumstances connected with the death.

Can evidence and findings from an inquest be used in future civil or criminal proceedings?

Evidence from an inquest can be used in subsequent civil or criminal proceedings. For example, witness testimonies may help prosecutors prove someone committed a crime, or family members prove someone was negligent in a civil claim for compensation. 

However, the findings of the Coroner or jury (for example, that the deceased was killed unlawfully) itself does not automatically prove criminal guilt or civil liability. Separate civil or criminal proceedings are required to decide civil and criminal liability. 

Appeals and Reopening

What can family members do if they believe that the inquest was procedurally improper or its findings wrong? Can family members appeal against the findings of an inquest, or ask for a new inquest?

Family members cannot bring an ordinary appeal against the procedure or findings of an inquest to a higher court in the same way they could appeal a civil or criminal case.

Instead, they can apply to the Court of First Instance for judicial review against the procedure or findings of an inquest. If the Court of First Instance finds serious errors, for example where the findings is not supported by evidence, the Court can order a new inquest.  

Is there a time limit for challenging an inquest?

If family members or other properly interested people want to challenge the inquest procedure or its findings through judicial review, they should do so as soon as possible—and in any case, no later than three months after the findings are handed down. 

If family members want to apply to the Court of First Instance to compel the Coroner, who has declined initially, to hold an inquest, the law provides no strict time limit. However, they should apply without delay in the interest of evidence preservation, among others.

Can the Coroner reopen an inquest if new evidence comes to light years later?

The Coroner can re-open or order a new inquest if new evidence comes to light, even if many years may have passed after the original inquest.   

Police Investigations and Criminal Proceedings

How can I assist the police investigation?

You can assist the police investigation in various ways, ensuring the information provided is truthful, complete, and delivered securely while safeguarding your rights:

• Types of assistance include statements, documents, images, communication records, physical evidence, etc. Before providing information, ensure its authenticity and refrain from screening or destroying any materials potentially related to the case on your own.
• When handing over evidence, it is advisable to make photocopies or backups first and ensure secure delivery to prevent loss or damage.
• If your memory is unclear, write down a timeline of events, involved individuals, and details in advance to provide more accurate information.
• While assisting the police, you may still refuse to answer questions about your private life or matters unrelated to the case, provided it does not violate the law.
• If you feel threatened or pressured not to assist the police, you may seek protection from the police or relevant authorities.
• Regarding the Tai Po Wang Fuk Court fire, the police have set up the following 10 dedicated hotlines, operational daily from 08:00 - 20:00, to collect videos or photos related to the fire: 5337 6671, 5337 6672, 5337 6673, 5337 6674, 5337 6675, 5337 6676, 5337 6677, 5337 6679, 5337 6680, 5337 6681

What evidence do I need to keep?

All materials related to the case, including documents (in paper or electronic form), photographs, etc., should be properly preserved.

General related information may include: information related to the fire, such as copies of police or fire reports; property and construction/maintenance related documents, such as contracts, construction drawings, maintenance reports and correspondences with constructions companies; records of complaints such as emails, letters or mobile communication records, especially conversations involving safety hazards before the fire; and proof of personal losses and expenses, such as medical receipts, repair fee invoices, and insurance claim documents.

When preserving evidence, you should keep the original document whenever possible, rather than solely relying on photocopies or screenshots. You should create electronic and paper copies, marking the date and source of the document to ensure authenticity of the documents in the future.

Some evidence such as CCTV footage, access control system records, or fire alarm system logs, may be overwritten or deleted after a short period and should be preserved as early as possible.

All evidence should be stored in a secure location, such as encrypted electronic files. When necessary, copies should be provided to the police department, fire services department, or the Independent Commission Against Corruption (ICAC), and records of the submission should be kept.

Am I required to give a police statement? What legal rights, protections, and limitations do I have during the statement-taking process?

You are not required to give a statement to the police in all circumstances. Whether you need to provide a statement depends on your role in the incident:

• If you are a witness:
  • During the police investigation phase, you have no legal obligation to give a statement; providing one is voluntary. However, the police generally expect witnesses to assist the investigation by providing known facts.
  • If you choose to give a statement, you should state the facts truthfully. You have various safeguards during the statement-taking process, such as requesting the presence of a lawyer, giving the statement in a language you are familiar with, requesting an interpreter, taking breaks and meals, requesting corrections of errors, and obtaining a copy of your statement for future verification or claims purposes.
  • You must not knowingly provide false or misleading information, or you may commit offenses such as perverting the course of justice.
  • Once signed, your statement may become admissible evidence in court, potentially affecting the case or any future civil claims.

• If you are a defendant:
  • The police will usually conduct a statement-taking procedure, inviting you to be interviewed and recorded.
  • You have the right to remain silent and are not obligated to answer police questions. For example, you have the right to refuse to answer questions that may be self-incriminating.
  • You may request a lawyer to be present and ensure that any statement is provided voluntarily, without coercion or intimidation.
  • You also have the right to request corrections of errors, obtain a copy, and receive basic safeguards (e.g., breaks, meals).

Once signed, the statement may be used as evidence in court and directly impact your criminal liability.

If certain questions from the police or court make me uncomfortable or touch on traumatic experiences, do I have the right to refuse to answer?

Your rights and obligations during police or court questioning vary depending on the circumstances:

• During the police investigation stage:
  • You may choose not to answer questions that cause you distress, especially those involving self-incrimination or falling under professional confidentiality (e.g., the duty of confidentiality for lawyers, doctors, or social workers).
  • If questions cause anxiety or trigger trauma, you may immediately inform the police officer of your discomfort and request a break or an adjustment to the questioning approach.

• During court proceedings:
  • If you are a qualified witness, the court may legally issue a summons requiring your attendance to testify. In such cases, you have a legal obligation to attend court and answer the court’s questions.
  • Even when summoned to testify in court, you retain the right to refuse to answer questions that could incriminate you (privilege against self-incrimination) and, in certain circumstances, the right to professional confidentiality. However, refusing to testify or answer questions without reasonable grounds may result in contempt of court charges.
  • Special provisions apply to children, defendants, co-defendants, and spouses of defendants, with differing obligations and rights regarding testimony.

  • If a doctor or professional certifies that you are unfit to testify due to trauma or mental health conditions, the court may exercise discretion, such as postponing testimony, adjusting questioning methods, or even exempting certain parts of testimony.

     

If a suspect is prosecuted, am I required to testify in court?

As a witness, you may not necessarily be summoned to testify, as the suspect may plead guilty. Even if the suspect pleads not guilty, the court will decide whether to summon witnesses based on the circumstances of the case. 

If the court issues a witness summons, it is a legally binding document requiring you to appear in court and testify at the specified date, time, and location. 

Upon receiving a witness summons, you generally cannot refuse to appear. Refusal without valid reason may result in contempt of court charges. 

If you have reasonable grounds (e.g., serious illness, being abroad, or safety concerns), you may apply to the court to reschedule your testimony or request to testify via video conference. The court will exercise discretion based on the circumstances. 

Should you fail to appear without justification after receiving the summons, the court may issue an arrest warrant and impose legal sanctions against you.

As a witness, what support will I receive?

When testifying in court or assisting police investigations, witnesses can receive comprehensive support to protect their rights and safety:

• Witnesses testifying in court may receive an allowance to cover transportation and basic expenses.
• If you have confidentiality concerns, you may apply to the police or court in advance for protection. The court will make appropriate arrangements based on the needs of the case.
• If needed, you may request accompaniment by a volunteer or social worker during court appearances for emotional support.
• The court can provide interpreters to ensure testimony is given in a familiar language, preventing language barriers from affecting your statements.

Vulnerable witnesses (such as children or mentally incapacitated persons) may apply to give testimony via video recording to reduce the stress of appearing in court.

As the victim or a family of a deceased person, what rights do I have in criminal proceedings?

According to The Victims of Crime Charter, you are entitled to the following protections and support to ensure your dignity and safety in the criminal proceedings:

1. To be treated with courtesy and respect: the police, prosecutors and the court shall treat you with respect and empathy when handling your case.
2. To be informed of the latest case progress: including whether the suspect has been charged, trial dates, verdicts, and other important information regarding the case progress.
3. To express your views: You may provide your opinions to the police or prosecutors to communicate your concerns and needs.
4. Court facilities and support: Victims giving evidence in court should be provided with proper facilities in court, such as waiting areas, interpretation services and may request accompaniment by a social worker or volunteer for emotional support.
5. To allow the court to know your situation: where appropriate, you may ask the court to consider your circumstances and opinions, such as the impact of the victimisation on your life.
6. Right to privacy and confidentiality: your identity and personal information should be protected and avoid unnecessary disclosure.

7. Special protective measures: if there are safety concerns, you may apply for witness protection. Vulnerable witnesses (such as children or persons with mental disabilities) may be allowed to give evidence through video recording to reduce the stress of appearing in court.

    

How long will the entire criminal proceedings take?

Due to the large volume of cases handled by the court, it is difficult to estimate the specific duration. From the commencement of police investigation to the sentencing of the court, the whole procedure may take several years. If the defendant pleads guilty, the duration of the litigation will be shortened.

Criminal Proceedings mainly includes the following stages:

• Police Investigation: Collection of evidence and taking of statements. The duration depends on the complexity of the case and may take several months.
• Decision to Prosecute by the Department of Justice: Review of police evidence and determination of whether to prosecute. This process usually takes several weeks to several months.
• First Mention: The defendant appears in court for the first time. The court confirms the charges and makes procedural arrangements.
• Pre-trial Procedure: This stage includes the submission of documents, handling of legal disputes, scheduling of the case for hearing, etc. It may take several months.
• Trial: The duration depends on the complexity of the case. Simple cases may take several days, while complex cases may take several months or longer.
• Sentencing: if the defendant is convicted, the court may impose the sentence immediately or adjourn sentencing to a later date

As the Tai Po fire involved a large number of fatalities and the situation is complex, the procedure will be even more complicated. If the case involves the liability of the construction company, additional time will be needed to investigate the construction documents, contracts, and expert reports. If the case involves manslaughter or other serious offences, there may be a need for a jury trial. Given the high level of public interest in this case, the court must exercise extra caution, which may delay the setting down of a court date.

Does the construction company bear criminal liability?

According to section 3 of the Interpretation and General Clauses Ordinance (Cap. 1), “person” in all legislations includes any public body and any body of persons, corporate or unincorporate. Therefore, if the construction company commits strict liability offences prescribed by law, for example, if a responsible person in a company failed to comply with section 13 of the Occupational Safety and Health Ordinance (Cap. 509) regarding workplace safety, the company may incur criminal liability. The maximum fine penalty is a fine at level 6. Furthermore, if the company engages in serious misconduct such as fraud or corruption, it may also face criminal liability. 

However, this type of offense requires the prosecution to prove that the company has both the actus reus (the guilty act) and mens rea (the guilty mind). Hence, there must be evidence to prove that any person in the company has a directing mind and will, and that person’s actions and intentions can be seen as the company’s actions and intentions. For example, whether a director directly engaged in fraud or corruption etc. 

If the company failed to comply with fire safety regulations during construction or maintenance, resulting in a fire that causes death or serious injury, such gross negligence may constitute criminal liability. If the company or its senior management knowingly undertakes such high-risk operations despite significant danger or deliberately conceals safety issues for profit, they may be charged with more serious offences, or even manslaughter.

What is manslaughter?

Under Hong Kong law and common law, manslaughter falls within three categories:

1. Unlawful Dangerous Act Manslaughter: the defendant commits a less serious offence, but the act itself is objectively dangerous and causes death.
2. Gross Negligence Manslaughter: the defendant’s gross negligence breaches the duty of care owed to others, causing death.
3. Voluntary Manslaughter: the defendant kills the victim, but due to some defences (such as diminished responsibility or provocation etc.), the charge is reduced from murder to manslaughter.

For example, in a fire incident, if the fire is caused by someone’s failure to comply with fire and safety regulations, such as illegal alterations to electric systems, storage of large quantities of flammable materials in inappropriate places, prolonged obstruction of emergency escape routes, or disregard of other known serious safety hazards, and such conduct seriously deviates from reasonable safety standards, demonstrates a high degree of disregard to safety of life, and causes death, the responsible person may be charged with gross negligence manslaughter. On the other hand, if someone deliberately commits an illegal act, such as arson, or knowingly commits illegal operations despite being aware of explosion or collapse risk, and that causes death, the court may consider such unlawful dangerous acts to be manslaughter.

Manslaughter is a serious criminal offence, punishable by life imprisonment. The court will determine the final sentence based on the specific circumstances of the case, the defendant’s degree of responsibility, and the consequences.

What is corruption?

According to the Prevention of Bribery Ordinance, corruption includes both giving and accepting bribes. Any public servant or employee of a private sector who takes advantage of their position to receive benefits, or any person who offers such benefits to them in expectation of gaining an advantage, may be in breach of the Ordinance.

Section 9 specifically applies to private sectors, stating that employees must not, without their employer’s consent, solicit or accept benefits in relation to the course of performing their duties. Likewise, no person may, without their employer’s consent, provide benefits to an employee to influence their conduct; otherwise, it constitutes an offence. The Ordinance defines “benefits” broadly, including money, gifts, commissions, positions, contracts, services, favours, or exemption from legal liability, etc.

Common forms of corruption in the construction sector include bid-rigging, acceptance of kickbacks or gifts, disclosure of tender documents, etc. There have been numerous convictions in the past. If such acts are involved, they may constitute a breach of section 9, resulting in criminal liability.

If I would like to report corruption, what should I do?

You may call the Independent Commission Against Corruption (ICAC) 24-hour corruption reporting hotline at 25 266 366 or visit an ICAC district office in person. For details, please refer to the ICAC website: https://www.icac.org.hk/tc/rc/faq/index.html.

Reporters should provide truthful information. Deliberately making false or malicious accusations may result in legal liability.

All report information will be kept confidential to protect the reporter’s identity. If someone threatens or retaliates against you for making a report, this constitutes a criminal offence. You may report it to the police or seek assistance from the ICAC.

Can I seek compensation through criminal proceedings?

The primary purpose of criminal proceedings is to determine whether a defendant is guilty and to impose punishment, rather than to address compensation.

In certain cases, the criminal court may order a compensation order requiring the defendant to pay a certain amount to the victim. However, such amounts are usually limited and cannot replace or cover the compensation you may be awarded through civil claims.

If you hope to pursue more comprehensive damages (such as medical expenses, loss of property, psychiatric injury), you will need to start a separate civil claim. Criminal decisions (e.g., conviction) can serve as important evidence in your civil claim.

If you intend to bring a civil claim but are concerned about legal costs, you may consider applying for legal aid to help reduce litigation expenses.