When the Administrator or Executor Moves the Estate's Money: What a Hong Kong Beneficiary Can Actually Do

Do You Want the Thing Back, or Do You Want Him Punished? In Hong Kong Those Run on Separate Machinery

You probably arrived with one word — report it to the police — and that word points at a machine that does not do the thing you actually want.

Many people arrive at this question in criminal words — can I report it to the police, theft, fraud.

Here is the problem. The word the reader has is criminal; the outcome the reader wants is proprietary; and in Hong Kong those are handled by two sets of machinery. ⚠ But it is too strong to say that they never hand work to each other. On a conviction the criminal court has three statutory money powers — Cap. 210 s.30 (orders for restitution), Cap. 221 s.73 (power to award compensation) and Cap. 227 s.98 (a magistrate’s corresponding power). All three are discretionary, all three are conditional, and none of them moves title by itself. They are set out in full below.

Two routes, in one line

Theft Ordinance (Cap. 210), section 33(2):

A conviction does not turn the flat or the money back into estate property. On the other side, Order 85, rule 2(3) of the Rules of the High Court lists, as the first relief you may claim:

One side punishes him. The other makes him account. ⚠ That does not mean the criminal court cannot help get the thing back: Cap. 210 s.30 lets the convicting court order restitution, delivery of traceable proceeds, or payment out of money taken on arrest. The civil route remains the one this article explains, because it does not depend on a prosecution being brought or a conviction being obtained.

The thirty-second version

• A conviction does not by itself change who owns anything — but that is not the same as the criminal court being powerless. Cap. 210 s.33(2) says title is not affected "by reason only of the conviction of the offender". ⚠ Section 30 of the same Ordinance gives the convicting court three restitution powers: to order anyone in possession "to restore them to any person entitled to recover them from him"; to order delivery of other goods "directly or indirectly representing" the first; and to order "a sum not exceeding the value of those goods" be paid out of money taken from the convicted person on arrest. Whether a particular case meets s.30's conditions depends on the facts, and s.30(4) imposes its own evidential limit.
• Besides a police report there is a second way in: making him account — and the provision that gives you that step is Order 85 of the Rules of the High Court.
• Delay by itself is not the offence. Cap. 10 section 71 gives a personal representative a year before he is bound to distribute; section 60J punishes handling the estate without having filed, not doing nothing.
• The offence that needs no proof of dishonesty has a death-date floor: section 60J(1)(a) applies only to the estate of a person who dies on or after 11 February 2006. The provision for following property, Cap. 10 section 67(3), expressly says it applies whether the deceased died before or after the Ordinance commenced.
• Even a civil win needs something to enforce against. The Legal Aid Department's own published refusal examples include an opposite party carrying no insurance and holding nothing worth enforcing against, so that a judgment could not be enforced.
• Two free channels do cover this problem, and neither of them gives you a lawyer to act for you.

Slow Is Not the Same as Wrong — and the Two Twelve-Month Periods Are Not the Same Thing

The Ordinance itself separates "has not distributed" from "handled the estate without filing": the first carries a year's grace, the second is the offence — and the two twelve-month periods run from the same day doing opposite work.

1. Section 71 is about distribution, and only about distribution

Probate and Administration Ordinance (Cap. 10), section 71, in a single sentence:

Eight months after the death with nothing paid out to anybody is not, by itself, a breach of section 71. That sentence is where a great many family disputes begin. ⚠ But read what s.71 actually covers. It opens "Subject to the provisions of this Ordinance", and it says only that a personal representative is not bound to distribute. It confers no year of inactivity and suspends none of his other duties under the same Ordinance or at general law — collecting in the assets, safeguarding the estate, and accounting for it.

2. The other twelve months is a filing deadline

Section 60J(8) defines the prescribed period:

It runs from the date of death, exactly as section 71's year does. Same start, opposite work: one protects him from being made to distribute, the other punishes him for not filing in time.

3. And doing nothing does not fall inside the offence

Sections 60J(6) and (7) each carry an act element. Subsection (6):

Subsection (7) is the other half of the same pair, addressing possession or administration after the period has expired without first filing.

Both require that the person "takes possession of, or in any way administers" part of the estate. Reading those two subsections' own words, this site's reading is that doing nothing at all does not fall within either. That is a reading of the text, not a decision of any court.

And if he did file and did obtain a grant? Then subsections (6) and (7) are looking at the twelve or eighteen months after the death — a window that has closed — and nothing he does today changes what happened inside it. Which is why the section on the offence below lands on subsection (2) rather than on (6) or (7).

4. There is no remuneration unless the court allows it — and the court may not allow it to a personal representative who does not account

Everything after the opening subsection is qualified by it. Section 60(1):

Two phrases carry the whole section: "the court may allow", and "as the court thinks fit". Remuneration under section 60 is a discretionary court allowance, not an entitlement. A personal representative does not begin with a right to be paid out of the estate which subsection (2) then removes. He begins with nothing, and subsection (1) is the only route to anything under section 60. ⚠ Section 60 is about a court allowance; it does not address a remuneration, charging or conditional-gift provision in the will itself. Whether a will may provide for payment is a separate question that Cap. 10 does not answer, so section 60 is not necessarily the only route to payment.

The limits come next. Section 60(2)(a):

And the cap, in the same subsection — it opens with the words "No such remuneration", and the antecedent of such is the allowance subsection (1) permits, not any sum he already had:

So the accurate statement is a narrow one: there is no remuneration unless the court allows it, and the court may not allow it to a personal representative who neglects to pass his accounts as the probate rules and orders require. What that is worth to a beneficiary depends on whether the court would ever have allowed anything — and in an ordinary family administration the question may never have been put to it.

Note those percentages and those two figures: Cap. 10 contains no power to change that scale. The point is taken up below.

In one line: section 71 means distribution is not due before the executor's year expires, and it suspends none of his other duties; handling the estate without filing in time is the offence the Ordinance actually creates; and a personal representative who neglects to pass his accounts cannot be allowed remuneration under section 60.

Making Him Account: the Provision Is in the Rules of the High Court

There is a provision aimed squarely at making a personal representative account, and it is drafted so that the action need not ask the Court to administer the whole estate — and so that the Court may stay the action and order proper accounts within a set period instead.

1. The duty, and what triggers it

Cap. 10, section 56:

The whole sentence turns on "when lawfully required so to do". The duty does not run by itself — somebody has to require it lawfully. So the next step is the actual entry point.

2. How it is required, in Order 85 of the Rules of the High Court

Rule 2(3) lists the reliefs that may be claimed. The first is the one this article is about:

And for a reader whose administrator has already moved the money, the next two paragraphs of the same list are closer to the point than the first. Rule 2(3)(b):

Rule 2(3)(c):

An order for accounts tells you what happened. An order under (b) puts money into court, and an order under (c) tells him to do something or to stop. The list also has a questions limb: rule 2(2) allows an action for the determination of any question arising in the administration of a deceased person's estate or in the execution of a trust, any question as to the composition of a class of claimants or beneficiaries, and any question as to the rights or interests of a person claiming to be a creditor of the estate or to be entitled under a will, on an intestacy or under a trust.

And rule 2(1) sets the shape of the action:

You do not have to ask the Court to take over the estate in order to ask for an account.

One more rule in the same Order decides who has to be in the action, and it is not optional. Rule 3(1):

So every personal representative has to be in it — and where one of them will not join as a plaintiff, the rule says he is made a defendant instead. For an estate with two administrators and a dispute between them, that is the mechanism rather than an obstacle. Rule 3(2) then runs the other way and is the reader-favourable half: notwithstanding Order 15, rule 4(2), all the persons with a beneficial interest in or a claim against the estate need not be parties; the plaintiff may join such of them as he thinks fit having regard to the nature of the relief claimed. You do not have to assemble the whole family to start.

3. And the rule is built so that the accounts arrive and the action stops

Rule 5, both paragraphs:

What the rule is built to do: the Court is told not to make a full administration order lightly, and it may stay the action and order accounts within a specified period.

4. Two routes, two originating documents — and a bridge between them

Order 43, rule 1(1) — the summary order — has a narrow entrance:

Rule 1(3):

The entrance is a writ. Order 85, rule 4 deals with the other side of the fork, and it is set out entire here, because its first half is the stronger point for a beneficiary and its closing words are the ones usually dropped:

Two things come out of that, and the second is that taking one route does not necessarily shut off the other.

• The first half is the reader-facing point. On an action begun by originating summons the Court may still make any certificate or order and grant any relief the plaintiff is entitled to by reason of any breach of trust, wilful default or other misconduct of the defendant. Choosing the summons does not narrow what can be ordered at the end of it.
• The closing words send you to Order 28, rule 8 — and that rule is a bridge, not a wall. Rule 8(1):

And rule 8(4) carries that through the rest of the Rules:

So the two routes are not sealed off from one another. The Court may order originating-summons proceedings to continue as if they had been begun by writ, and once it has, a reference in the Rules to an action begun by writ includes them — and "a writ" is the entrance Order 43, rule 1(1) is written on. The two routes start with different documents, and the Order 43 summary order is drafted for the writ; whether a court would make an Order 28, rule 8 order depends on the case.

The summary disposal available on the originating-summons side is Order 28, rule 4(1):

5. And if the accounting itself stalls, the rules anticipated that

Order 43, rule 7:

5a. And the published procedure for all of this is Practice Direction 20.2

There is a Judiciary practice direction covering exactly the ground this section and the removal section describe. It is Practice Direction 20.2, Probate and Administration of Estate Proceedings (other than applications under the Non-Contentious Probate Rules (Cap. 10A)). Its paragraph 1 states its own scope:

Paragraph 2 draws the line the reader most needs, because the grant application itself is a Cap. 10A matter:

And paragraph 3(2) ties the practice direction's own term back to the rule this section is built on:

So the practice direction and the Order 85 route set out above are the same route, described from two ends — the rule confers the jurisdiction, the practice direction says how the paperwork is done. They do not conflict.

On accounts specifically, Part IV is short and it is the part that matters here. Paragraph 54:

Paragraph 55, on directions:

Paragraph 57, on the form the account must take:

Three things follow that a reader cannot get from the Rules alone. The account may be taken by a master, not necessarily a judge. The court may fix who lodges what and by when, and a period within which objections must be lodged — so the accounting is a two-sided timetable, not a single filing. And the accounting party must separately number each distinct account and exhibit it to an affidavit or witness statement verifying it — which is the same affidavit form the judgment in section seven of this article records the court ordering.

A practice direction states procedure, not substantive law; it does not say when a court will order an account, when it will remove anybody, or what has to be proved. Its date is in paragraph 72 and the line under it:

6. Open questions

• Whether the Order 28, rule 4 summary disposal is available against a personal representative, as opposed to an express trustee, turns on case law.
• Whether there is a common-law duty to keep and render accounts separate from section 56 is a further question. The duty in this section is section 56's and the relief is Order 85's.

You Can Ask to See the Schedule of Assets — and on the Grant Routes the Ordinance Says It Need Not State the Value of Anything but Cash

The document that defines the boundary of the offence is sworn by the person the offence is aimed at, is not independently verified by the Registry as part of issuing the grant, and there is a stated route by which you can ask to inspect it — and for the schedule annexed to a grant, and for the schedule annexed to the sealing of a foreign grant, the Ordinance says in terms that the value of assets other than cash need not be stated in it.

1. The offence's boundary is the schedule

Section 60J(2):

The scope of that subsection is set by what is and is not on the schedule.

2. Why the schedule exists

In 2005 the Administration proposed dropping the requirement that a schedule of assets and liabilities be annexed to the grant. Its reasons were that the office usually falls to somebody the deceased had trusted or to his nearest family, so that mismanagement was not to be expected as the ordinary case, and it offered a list of provisions already on the statute book as the beneficiary's protection instead (Bills Committee report, paragraphs 14 and 16). Members did not accept that assessment, taking the view that the Crimes Ordinance provisions the Administration had cited could not deal with intermeddling (paragraph 17); the Administration then reversed its position and made a sworn schedule of assets and liabilities mandatory (paragraph 18). The same report, at paragraph 19, records that the prescribed form would say on its face that nobody at the Registry, and nobody in government, had checked what the schedule contains. (This site's summary, with paragraph numbers.)

So the document that fixes the offence's boundary is sworn by the person the offence is aimed at, and the Registry does not independently verify what it says as part of issuing the grant — and it exists at all because the legislature did not accept the Administration's assessment. ⚠ That does not mean the schedule cannot be tested. The schedule is sworn; section 24A(8) imposes a continuing correction duty; inspection may be permitted on the stated route; and in any later proceedings it can be challenged.

3. There is a stated route to see it

The Judiciary's public probate FAQ, at section 15.1, says that once the grant has issued the application file is closed to inspection unless the applicant consents in writing, or the Registrar accepts that good reason has been shown — and the illustration the page itself offers is somebody who is a beneficiary of that estate and is asking how it stands. (This site's summary.)

4. And the section 24A and section 49AA schedules need not state value — which must be read with the three points above

Cap. 10, section 24A(13):

Section 49AA(13), for a sealed foreign grant, is word for word identical.

There are three schedule routes, and only two of them carry this subsection. Section 60J(2) fixes the offence's boundary by reference to a schedule exhibited under section 15A (the Official Administrator route), annexed to a grant (section 24A), or annexed to a sealing instrument under section 49AA. Section 24A and section 49AA each have a subsection (13) in these words. Section 15A has no equivalent: it runs to subsection (7) and contains no "for the avoidance of doubt" provision about value at all. So what is said here concerns the section 24A and section 49AA schedules; for a section 15A schedule the Ordinance neither requires value to be stated nor excuses it in the terms it uses for the other two.

So the document you can ask to see — on the two routes that carry the subsection — is a list, not a valuation. A flat, a shareholding and a car can each appear as a single line with no figure after it.

5. But the schedule is not write-once: the Ordinance imposes a continuing duty to correct it

Section 24A(7) provides that the duplicate schedule shall be annexed to the grant. Section 24A(8):

And section 24A(12) closes off the answer that the grant only covered part of the estate:

In one line: an asset left off the schedule does two things at once — it may bring subsection 60J(2) into play, and it removes the item from the one official record you can most easily reach. And the Ordinance does impose a duty to correct an inaccuracy discovered later.

Subsection 60J(2) reaches property not set out in the schedule. An asset that is properly listed, and is then sold or spent by the person who listed it, is outside subsection (2) for that reason alone — and subsections (3), (6) and (7) address a person who is not the grant-holder, or a window that closed when the grant issued. So for a grant-holding administrator who sells a flat that is on the schedule and keeps the proceeds, the offence this article calls the one needing no proof of dishonesty may reach nothing at all. That is a reading of the four limbs' own words, not any court's decision.

He Bought It Himself, or One of Them Signed the Transfer Alone: Two Voidability Provisions, and One Section That Splits Land from Everything Else

There are two voidability provisions, not one: one for a personal representative who purchases the deceased's property, and one for any disposal made in contravention of section 54 — and section 54 lays down opposite rules for land and for everything else, with a further exception of its own for an executor who has proved.

1. He bought it himself — section 55

Three things at once: it is voidable, not automatically void; it requires another person interested in the property sold to take the point; and it is not a criminal provision.

2. Other disposals — section 54, which is what most people actually meet

Land: all the personal representatives must concur — except where section 54(2) applies. Section 54(1):

(The asterisk points to the section's editorial note; the commencement date is 7 October 1971.)

And the exception is the very next subsection. Section 54(2):

Read what that does. Where the deceased left a will naming two or more executors and probate has been granted to one or some of them, the proving executor may convey the immovable property alone, without an order of the court, and the conveyance is as effectual as if all the named executors had concurred in it. So unanimity on land is the rule for administrators. Where the grant is probate of a will naming executors of whom only some have proved, section 54(2) is an express answer to it. Which of the two positions you are in is a question about the grant in your own case: whether it is probate of a will naming executors, or letters of administration.

Everything else: any one of them can act. Section 54(3):

And a disposal in contravention of the section is voidable. Section 54(5):

A worked comparison: the same conduct, two different results — and it is written for administrators

Suppose the deceased died intestate, left a flat and a bank account, there are two administrators, and the grant contains no contrary direction. Note the premise: there is no proving executor.

• The flat is transferred on the signature of one administrator alone. Section 54(1) requires the concurrence of all the personal representatives or an order of the court, and neither is present, so the disposal is one made in contravention of the section and section 54(5) applies — voidable at the instance of any other person interested in the property.
• The bank account is drawn down by one administrator alone. Section 54(1) speaks only of immovable property; absent a contrary direction, section 54(3) provides that the powers of all may be exercised by any one of them, so the bare fact that one of them acted alone does not engage section 54(5).

That comparison is simply the two subsections read side by side; it is not any court's decision. It holds only where there is more than one personal representative and no contrary direction — change either premise and the answer changes.

And where there is only one administrator? Section 54(1) speaks of "all the personal representatives" — where there is one, he is all of them. So this distinction is for estates with more than one personal representative.

And where the grant is probate of a will naming more than one executor, and only some of them have proved? Then section 54(2) applies and the land case behaves like the bank-account case: the proving executor may convey the immovable property without the others and without an order of the court, and the conveyance is as effectual as if they had all concurred. The comparison above is written for administrators. It is not the position for a proving executor.

3. The other side, stated: disposal is his power

Section 54(4) allows a personal representative to charge, mortgage or otherwise dispose of any property vested in him as he may think proper, subject to any restriction imposed in that behalf by the will of the deceased and to the provisions of the section — and the subsection carries a proviso that goes the other way again: an executor may dispose of any property notwithstanding a restriction so imposed, if he does so in accordance with an order of the court. Disposal is the rule; sections 54(1) and 55 are the exceptions; and a court order can lift a testator's own restriction.

4. Beyond the provisions

What a court does about a sale at an undervalue to a family member, and who bears the onus on price, turn on case law. This section sets out the two provisions and what each of them requires.

The Property Has Gone to Somebody Else: the Ordinance's Word Is "Follow", Not "Trace"

Cap. 10 section 67 provides that an assent, transfer or conveyance to somebody who is not a purchaser does not prejudice the right to follow the property into that person's hands, and it lets the court declare that person a trustee — and it says expressly that it applies whether the deceased died before or after the Ordinance commenced.

1. What subsection (1) actually does — and it is a non-prejudice provision

Section 67(1):

Read the verb. The subsection says such a transfer "does not prejudice the rights of any person to follow the property". It preserves a right against being defeated by the transfer; it does not, in those words, create one. Where that right comes from, and what it lets a beneficiary recover, is a separate question. What section 67 does confer in its own words is in subsection (2), and those are powers of the court. (The section's heading, "Right to follow property and powers of the court in relation thereto", is framed more broadly.)

2. What the court may do

Section 67(2):

Paragraph (b) is the single sentence in this whole article that points most directly at getting the thing back: the court may declare the recipient, not being a purchaser, a trustee.

3. And there is no death-date floor, because the subsection says so

Section 67(3):

Two things in one sentence, and both must be carried:

• The right reaches deaths before the Ordinance commenced — the editorial note gives the commencement date as 7 October 1971;
• but it expressly does not prejudice a purchaser, or a person deriving title under a purchaser. It reaches somebody who was given the property; it stops at a "purchaser" in the subsection's own word. That limit is the subsection's own. ⚠ But section 67 does not define "purchaser". The only definition in Cap. 10 is in section 68(9), and it is expressly confined to that section:

Who counts as a purchaser under section 67, and how value, notice or knowledge bear on it, the section does not say.

4. Terminology: the statute follows; it does not trace

The Ordinances speak of following, not tracing: section 67 is itself headed "Right to follow property and powers of the court in relation thereto". So this article uses "following" for the statutory power.

5. Put beside the criminal route

As at 30 August 2026 the first covers 20 years and 6 months. The second has no coverage span to state, because section 67(3) declines to floor itself at the commencement date at all. The accessible offence has a date line; the provision that can actually get the thing back was drafted not to have one.

Removing Him: the Court Has the Power, What It Takes Is Judge-Made — and One Judgment, with Its Bounds

The court may suspend or remove an executor or administrator, provide for a successor, and vest estate property in that successor. The provision is plain. What it takes before the court will do it is not in the provision.

1. The removal power: Cap. 10 section 33(3)

Note the last limb: "for the vesting in that other person of any property belonging to the estate". That is an express vesting power, and a criminal court has nothing like it (see below).

And subsection (3) is not the whole of section 33. The section is headed "Revocation of grants and removal of executors", and the first two subsections are about revocation. Section 33(1):

Section 33(2):

Two separate things live in this section, and they answer different questions. Subsections (1) and (2) go to the grant — that it ought not to have been made, or that it contains an error. Subsection (3) goes to the person — that the due and proper administration of the estate and the interests of those beneficially entitled require his suspension or removal. Both are set out because "revoke" is a word a reader may well be searching for. What a court requires before doing either is judge-made.

Note: that is Cap. 10 section 33. The provision quoted earlier for the proposition that a conviction does not move title is Cap. 210 section 33. Two Ordinances, the same section number, opposite work.

2. Appointing somebody else: Cap. 10 section 36

Section 36 allows the court, where it appears necessary or convenient to appoint some person other than the person who would by law otherwise have been entitled, to appoint such person as the court thinks fit — but expressly "subject to section 25".

3. And section 25 is not a cross-reference to skip

Section 25 has two subsections and the first is the operative constraint on a section 36 appointment, so it is quoted first. Section 25(1):

Two limits in one subsection: never more than four, and — where there is a minority or a life interest — never fewer than two individuals, or a trust corporation. For a family estate with a minor beneficiary, the second is why a sole administrator may not be a lawful arrangement in the first place.

And section 25(2):

Subsection (2) is an addition, not a removal, and its gate is a minority or a subsisting life interest — not misconduct. For some families it is closer to their actual position than removal is. Together the two subsections are a ceiling and a floor on who holds the office, and section 36 is expressly subject to both.

4. The judicial trustee: Trustee Ordinance (Cap. 29) section 63

Section 63(1) allows the court, on the application of a beneficiary among others, in its discretion to appoint a judicial trustee jointly with any other person or as sole trustee, and, if sufficient cause is shown, in place of all or any existing trustees. And section 63(2):

The words "within the meaning of this Part" travel with that sentence every time it is used — it is a provision about Part V of Cap. 29, not a general equation.

5. There is one administrator none of this reaches

Section 33(3) expressly excludes the Official Administrator from the removal power. And Cap. 10 section 22:

The one personal representative the court cannot remove is also the one the section protects from being sued — and the Ordinance writes a different route for him: a summary petition. ⚠ Track the statutory qualification exactly: section 22 bars an action for anything done by the Official Administrator bona fide in the exercise or intended exercise of the powers the Ordinance gives him, or in the execution of his duties under a grant made to him. "Bona fide" and "the powers vested in him by this Ordinance" are two limits. It is not an unconditional immunity.

Who he is — section 9(1):

When he acts — section 15(1):

That $150,000 is another figure Cap. 10 gives nobody power to change (see below).

5a. And the procedure for removal is published too — Practice Direction 20.2, Part III

Section 33(3) gives the power. It does not say how you ask for it. Practice Direction 20.2 does, and its Part III is headed for removal or substitution of an executor or administrator under section 33(3) of Cap. 10. Paragraph 44:

An inter-partes originating summons with a supporting affidavit — which is the same shape of process as the judgment set out below. On who has to be in the action, paragraph 45:

On what the affidavit has to contain, paragraph 46:

Note the second half of paragraph 46(1): where the personal representative has partially administered the estate, an account is to be exhibited giving brief details of the size, value and nature of the assets administered. That is the accounting duty of this article's third section reappearing inside the removal procedure.

And whether a judge or a master deals with it turns on whether the application is fought. Where it is not contentious and the written consents of all interested parties are filed, paragraph 49 says:

Paragraph 50:

Revocation, which is the other half of section 33, has its own procedure in Part II Section B, and it is split the same way. Where the grantee brings the action and nobody objects, paragraph 15:

Where there is objection, paragraph 16:

And mediation is not optional to ignore. Paragraph 61 applies the practice direction's mediation Part to contentious proceedings commenced by originating summons under, among others, Part III:

⚠ The bounds are the ones stated in section five above. Practice Direction 20.2 states procedure, not substantive law: it does not say what the court must be satisfied of before it removes anybody — that is section 33(3)'s own words plus the case law.

6. One judgment, and what it does and does not settle

One Hong Kong judgment illustrates this. It is Mak Mei Ki Angela v Chan Wai Fong and Mak Chi Tat, HCMP 1894/2016, Court of First Instance, Au-Yeung J in Chambers, heard and decided 8 March 2017 (the proceedings number carries 2016; the judgment is 2017). It was an originating summons under Order 76 and Order 85 rule 2 of the Rules of the High Court and section 33 of Cap. 10, brought by a daughter of an intestate who died in 2005. The administrators — the widow and a son — did not acknowledge service and did not appear, and the judge proceeded in their absence. That is the first thing to hold on to about it.

The two-step the court used. Where the defect in a grant is a supervening one — the grant was properly made but has since become ineffective — the judgment adopts the approach in Re Estate of Kwan Chung [2013] 6 HKC 29, quoting Poon J (as he then was): the applicant should consider "Whether removal of the grantee without revocation of the grant is sufficient." and, if so, proceed under section 33(3); and then "Whether there are additional special circumstances that require revocation of the grant as well.", proceeding under section 33(1) if they do. Removal and revocation are asked in that order, and they are different questions.

What satisfied the court on removal. Ten years after the grant, beyond a partial distribution the estate had not been fully administered:

And why removal alone was not the whole remedy:

— because their complete failure to participate created a real and substantial risk that they would refuse to lodge the grant, so the grant was revoked as well and the lodging dispensed with.

Accounts. Under Cap. 10 section 56 — the same provision section three of this article sets out — the court ordered accounts, on the footing that ten years had passed and there had been an interim distribution:

The order required the accounts to be furnished by affidavit within a period the judgment states.

The replacement. Under Cap. 10 section 36 the court appointed an independent professional, on the principle in Re Estate of Loo Che Chin [2013] 6 HKC 303 that in exercising that discretion "the court will act in the best interests of the estate and apply common sense to the facts of the case" — and appointed one accountant rather than the two proposed, to save costs. Costs were ordered nisi against the administrators personally and on an indemnity basis, because the application was wholly necessitated by their inaction. ⚠ The costs figure in that case is specific to its facts and is not a guide to what an accounts application costs.

Now the limits.

⚠ This is one first-instance decision on an unopposed application. It shows what satisfied one judge on one set of facts. It is not a threshold — it does not establish that ten years, or a failure to account, or non-appearance, is what the court requires, or what a defended application would need.

⚠ On what a delay in rendering accounts has to do with removal: in that case the failure to furnish accounts despite repeated requests was among the conduct the court held detrimental to the due and proper administration of the estate. That is a fact about one case, not a rule about how long a delay must run.

⚠ Also turning on case law: How the court chooses between section 33(3) and section 36 in a case where both are open; whom it prefers as a replacement in general; and what a contested removal requires.

7. The threshold

What the court needs to see before it will suspend or remove anybody is judge-made, and the provision's own words are only that the court must be satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled so require. One judgment on that phrase is set out immediately above, with its limits.

Caveats: a Caveat Cannot Stop a Grant Sealed on the Day It Is Entered

A caveat is entered so that no grant is sealed without notice to the person who entered it, and the rule says expressly that it cannot stop a sealing on the day it is entered.

1. What the rule says

Non-Contentious Probate Rules (Cap. 10 sub. leg. A), rule 44(1):

Rule 44(6):

Rule 44(4):

And rule 44 defines its own subject, which is worth reading before drawing any conclusion from its choice of verb. Rule 44(14):

So "sealing" in rule 44 is the act by which a grant is allowed to go out, and the rule applies it both to a Hong Kong grant and to a foreign grant produced for resealing. The Registry's own practitioner guide uses "issued" for the same act, at paragraph 284.

2. What the public page says

The Judiciary's probate FAQ, at section 16.1, tells the reader that where an effective caveat stands against a deceased person's estate the Registrar may not let the grant go out — flatly, and with no proviso. It says that in both languages. Rule 44(6) says the same thing and then qualifies it: no caveat operates to prevent the sealing of a grant on the day the caveat is entered. (This site's summary.)

3. Which governs

The subsidiary legislation. The rules are the instrument; the FAQ is a description of it. And the same publisher's 107-page practitioner guide records, at paragraph 284, that entering a caveat does not stop a grant going out that same day.

4. What this means for you

If the administrator already holds a grant, a caveat has nothing left to stop. Its live use once a dispute is running is as the vehicle for a section 36 summons (practitioner guide, paragraph 294), and caveat proceedings are contentious, with costs (paragraph 292). So the one immediately available step you are most likely to find is the one that has already passed you by.

Sureties: the Ordinance Has Them, the Rules Switch Them Off by Default, and Solicitor Applicants Are Exempt Again

Cap. 10 section 46 lets the court require sureties, but rule 38 of the Non-Contentious Probate Rules reverses the default, so an ordinary Hong Kong-resident family applicant provides no guarantee at all — and where a guarantee does exist, no action may be brought on it without the leave of the court.

1. The power: Cap. 10 section 46

Section 46 allows the court, subject to section 47 and to and in accordance with probate rules and orders, to require one or more sureties to guarantee that they will make good, within any limit imposed by the court, any loss which a person interested in the administration of the estate may suffer in consequence of a breach by the administrator of his duties as such — as a condition of granting administration.

And the Ordinance itself provides for the switch. Section 47(3):

The closing words are the ones that matter here: "or in such other cases as may be prescribed by probate rules and orders". So what rule 38 does is not a rule overriding an Ordinance; it is the Ordinance's own delegation being exercised. The relationship is delegation, not reversal — the heading above says the rules switch sureties off by default, and section 47(3) is the provision that lets them.

2. How the rules exercise that delegation: rule 38(1)

The two authentic texts differ in modality here, and both are authentic.

English:

The Chinese text of the same paragraph opens 「司法常務官無須根據本條例第46條規定提供擔保作為授予遺產管理的一項條件」, which reads naturally as need not rather than shall not. This article sets the two side by side and does not decide between them.

Six exceptions, one at a time: a creditor grant, a rule 27 grant, an attorney, a person under 21, a person incapable of managing his affairs, an applicant resident outside Hong Kong — plus a residual special-circumstances power. An ordinary Hong Kong-resident family applicant is in none of them.

3. And even inside an exception there is a further exemption

Rule 38(2):

And where a guarantee is required, rule 38(5) fixes how it is given — and contains a money figure of its own. Rule 38(5)(a) provides that unless the Registrar otherwise directs, a guarantee is to be given by two sureties, except where the gross value of the estate does not exceed $7,000, or a corporation is a proposed surety, in which cases one will suffice. Rule 38(5)(d) then caps the surety's liability at the gross amount of the estate as sworn on the application for the grant.

That $7,000 belongs with the frozen figures set out below; the table there lists the Ordinance's own figures, and this one is in the rules (Cap. 10A). Counting the rules as well, there are four such figures.

4. And where a guarantee does exist, there is one more gate

Cap. 10, section 47(2):

The only third-party pocket in the entire scheme has a leave requirement in front of it.

5. The comparison with England, in the Registry's own words

The Judiciary's practitioner guide records, at paragraph 121, that notwithstanding the abolition of such a requirement in the United Kingdom, rule 38 requires the provision of a guarantee in the situations set out in rule 38(1)(a) to (f). (This site's summary.)

6. And if the administrator is a solicitor?

There is no solicitors' compensation fund in Hong Kong. The Legal Practitioners Ordinance (Cap. 159) and its subsidiary legislation establish none.

What stands in a fund's place is rule 9A(2) of the Solicitors' Accounts Rules (Cap. 159 sub. leg. F):

The principal's own resources have to make it good. ⚠ But that does not support "there is no fund": the very rule quoted above refers to "the fund established under rule 3 of the Solicitors (Professional Indemnity) Rules (Cap. 159 sub. leg. M)". That rule, on the version in force 1 October 2022, provides:

The loss it indemnifies is the loss described in Cap. 159 section 73A(1), the section that authorises indemnity rules to be made. So the accurate statement is: Hong Kong has no statutory scheme called a compensation fund but there is a professional indemnity fund established under rule 3 of Cap. 159 sub. leg. M. The two are not substitutes for each other.

What that fund covers, on what terms, with what exclusions, and who may claim on it, is set out in the Law Society's own current material. The professional-misconduct complaint route is a separate matter; a complaint and a recovery are not the same thing.

7. The published figures

A written reply of 24 February 2021 gives the following figures (this site's summary): 15 interventions in solicitors' firms over 2016 to 2020 inclusive; of those 15, 3 were put down to suspected dishonesty on the part of an employee or partner — and the reply adds that two of those three also broke the Solicitors' Accounts Rules. It records 941 claims arising from those interventions, claims later withdrawn excluded; a total claimed of about HK$120 million; and, on the Law Society's own statistics, an average of about a year and a half, counted from the day of the intervention, before the money is released with the Court's approval. On the suggestion of a compensation fund the reply said only that the Department of Justice was willing to talk to the industry.

3 of 15 is 20%.

The denominators must travel with the figures: those 15 are interventions in law firms across all practice areas, not estate matters and not administrators; 941 is claims made, not claims established; HK$120 million is the amount claimed, not lost and not paid; and the year and a half runs from the intervention to release with the Court's approval. Nothing in those numbers is a rate of estate misappropriation.

What Crime Can He Be Charged With? Three Routes, Three Thresholds

There are three routes in the statute book that can point at a personal representative: theft, fraud, and the offence of intermeddling with an estate under section 60J of the Probate and Administration Ordinance. The third needs no proof of dishonesty — and the whole of it applies only to the estate of a person who dies on or after 11 February 2006.

Whether anybody's conduct falls within any of them depends on the facts.

1. Theft: four elements, all of them in the statute

Theft Ordinance (Cap. 210), section 2(1):

Each element has its own defining section, and two of those sections mention personal representatives expressly — and both of them enlarge his exposure rather than reduce it. That is easy to read backwards, so it is set out here carefully.

"Dishonestly" — section 3(1):

Read paragraph (c) word by word. Believing the owner cannot be found by reasonable steps is a route to not being dishonest, and the bracketed words take that route away from a person to whom the property came as trustee or personal representative. A personal representative therefore has one fewer way of being not-dishonest than an ordinary defendant, not one more.

"Appropriates" — section 4(1):

Note the second half: coming by the property lawfully and later assuming a right to it by keeping or dealing with it as owner can be an appropriation.

"Property" — section 5(2):

The general rule is that land cannot be stolen, and paragraph (a) creates an exception precisely for a trustee or personal representative. Land becomes capable of being stolen because of the office.

So the statement that trustees and personal representatives are "carved out" of the theft provisions is the opposite of what the sections say. Both are exceptions that enlarge criminal exposure.

"Belonging to another" — section 6(2):

"With the intention of permanently depriving" — section 7(1):

The offence — section 9:

2. Fraud: a differently shaped threshold

Section 16A(1):

Note the structure: there must be a deceit, and the deceit must induce another person to do or omit something. On this site's reading of that structure, that is a different shape from a personal representative simply holding on to estate money — a reading of the subsection, not any court's decision.

3. Intermeddling: the offence that needs no proof of dishonesty, and a date line

The date line comes first, and it is repeated every time this offence is named — but subsection (1) has two limbs and both are gates, so it is quoted entire. Section 60J(1):

Paragraph (a) is a date and paragraph (b) is a place. If the deceased died before 11 February 2006, section 60J does not apply at all, and the question of what he can be charged with falls back on Cap. 210, whose thresholds are considerably higher. And the section reaches only estate or property situated in Hong Kong when the deceased died — so for assets that were outside Hong Kong at the date of death, this offence is not the route, whatever the date. Section 60K carries the same pair, at section 60K(1)(a) and (b).

The four offence limbs, and who each addresses:

For a reader whose administrator already holds a grant, subsection (2) is the limb that speaks to present conduct. The reasoning was given earlier: (6) and (7) look at a window that closed when the grant issued, and (3) addresses somebody who is not that administrator. That is this site's reading of the four limbs' own act elements.

The table is limited to the four offence limbs, and section 60J has two further subsections that are not offences at all — which matters if what you are looking at is a bank. Subsections (4) and (5) deem a bank and its employee to have acted with lawful authority, for the purposes of subsections (2) and (3), where the employee acted in good faith and with due care: (4) where the bank was performing a function under the Part's inventory provisions, and (5) where it allowed a surviving joint renter to exercise his right of access to a safe deposit box under the renting contract, subject to section 60I. Section 60I is the provision that subjects that right of access to the Ordinance for the 12 months after the joint renter's death, or until an inventory is prepared. How safe-deposit-box access works is outside this article.

4. Section 60K — the provision three of those limbs are subject to, and what it actually is

This is missing from most accounts of the offence, and it narrows the table above. Section 60K(9):

And where does a confirmation notice come from? Section 60K(2):

And section 60K carries the same 11 February 2006 gate, at section 60K(1):

Three sentences to hold together — and all three make the position narrower, not softer:

• This is not "an estate worth under $50,000". The provision requires that all properties beneficially owned by the deceased at death be money not exceeding $50,000 in aggregate, and that he held nothing as trustee or as manager of a Tso or Tong. A flat, a car, even one parcel of shares takes the estate outside section 60K however small the total.
• Section 60K(9) does not reach section 60J(2). So in a qualifying small estate the administrator who takes possession commits no offence under (6) or (7) — and the administrator who swore a false schedule still commits one under (2). The sworn schedule is the one thing the exemption does not forgive.
• It is not automatic. The words are "Where a confirmation notice issued under subsection (2) is in force" — and the weight sits on is in force. No notice, no disapplication.

5. The penalty, and one figure that can move beside one that cannot

Section 60J(9):

A fine at level 3 is $10,000 (Criminal Procedure Ordinance (Cap. 221), Schedule 8). And that figure can be changed — Cap. 221, section 113B(3):

Within one section you have met two money figures: one with an express power to update it, and one — the $50,000 in section 60K — with none.

6. The Government's own page, and its own warning

The Home Affairs Department publishes a page on intermeddling which confirms the executor and person-entitled-in-priority limbs from the Government's side and states the 12-month and 18-month prescribed periods (this site's summary). Two things go with it:

• Its opening sentence is narrower than the section its own detail sets out — it attaches "without lawful authority or reasonable excuse" to the offence generally, whereas the statute puts that qualifier in subsections (2) and (3) only.
• The page prints its own statement that the section has no legal effect.

A page that misstates its own subject in its first sentence and disclaims its own legal effect is not the answer to anybody's case.

7. Two further points

• The mode of trial for a section 60J offence: Cap. 210 sections 9 and 16A both say "on indictment"; section 60J(9) says only "on conviction".
• Time limits for prosecution depend on the class of offence and the facts.

8. And one common-law offence

Cap. 210, section 16A(4):

There is a legislative history behind that sentence. A 1998 LegCo Brief (file reference LP452/00C), at paragraph 3, records that the Law Reform Commission's consultation paper of May 1995 recommended creating a general offence of fraud and, at the same time, abolishing the common law offence of conspiracy to defraud. The first half was enacted as section 16A. The second was not — and the Ordinance says so in terms.

So Hong Kong keeps both a statutory fraud offence and the common law conspiracy, and that is the legislature's own choice after being advised to collapse them into one.

Section 16A(4) names the offence but gives none of its elements, which are found in the common law.

Does Making Him Account Help the Prosecution? Both Halves of the Bargain Are Limited to Cap. 210

Cap. 210 section 33(1) contains a trade: in proceedings for the recovery or administration of property, for the execution of a trust, or for an account, a person may not refuse to answer on the ground that answering may incriminate him; and the answers are not admissible against him in proceedings for an offence under the Theft Ordinance. Both halves of that trade are bounded by the same six words.

1. The subsection

The words "an offence under this Ordinance" appear twice in that subsection: once at the start and once at the end.

2. So what falls inside, and what does not

3. Two limits

• That Cap. 210 section 33(1)'s exclusion does not reach a Cap. 10 section 60J prosecution is not a statement that such answers are admissible there. It means only that this provision is not the source of any protection.
• That Cap. 210 section 33(1) does not remove the excuse where the fear is of a non-Cap. 210 offence is not a statement that the administrator may refuse. It means only that the provision does not speak to that case.

4. Which route first

Whether a court will stay civil proceedings while a criminal complaint about the same estate is on foot depends on the case.

Which route to take first is a question of practice and cost, not a fixed rule.

5. Police reports and civil cases

It does not follow that a police report stalls a civil case, or that documents held by the police stay any proceedings. The police general order discussed below describes investigation and referral and says nothing about the effect of any seizure on a civil action.

The interference shown in this section is evidential rather than procedural.

Even a Conviction Does Not Bring the Money Back — but the Criminal Court Is Not Without Money Powers

Cap. 210 section 33(2) is plain: where property has been stolen or obtained by fraud or other wrongful means, title is not affected by reason only of the conviction of the offender. And the additional penalty measured by value under section 60J(9) is a penalty, not compensation to the estate. ⚠ But "title is not affected" and "the criminal court can make no money order" are two different propositions. Three statutes give the convicting court a discretionary money power, and this section sets each of them out with its conditions.

1. The provision

Note the opening words: "Notwithstanding any enactment to the contrary". This subsection overrides.

2. And the value-measured additional penalty is a penalty

The additional penalty in section 60J(9)(b) is payable on conviction. A penalty is not compensation, and it does not go to the estate. Read with Cap. 210 section 33(2), the precise position is: on that penalty alone, the criminal route can produce a money consequence measured by what was taken, and still not put it in the beneficiary's hands.

3. But three statutes give the convicting court a money power

Cap. 210 section 30 — orders for restitution, exercisable on a conviction for an offence with reference to a theft:

And the section carries its own evidential limit, in subsection (4):

Criminal Procedure Ordinance (Cap. 221) section 73 — power to award compensation. This one is not confined to theft; it follows a conviction for any offence:

Note subsections (2) and (5): once made, the sum is a judgment debt and is enforceable as one.

Magistrates Ordinance (Cap. 227) section 98 — the corresponding power in a magistracy, with a ceiling. On the version in force 14 May 2026:

Put together, the accurate statement is this:

• All three say "may", not "shall" — each is a discretion.
• All three are conditional. Section 30 needs goods stolen and a conviction with reference to that theft, and is subject to the evidential limit in section 30(4); sections 73 and 98 need an aggrieved person and loss of or damage to property (or personal injury); section 98 is capped at $100,000.
• None of them is a vesting order. None makes the property revest in the estate, and Cap. 210 section 33(2) remains correct on its own terms.
• An order still has to be collected. Section 73(2) and (5) say so themselves: the sum is a judgment debt, enforceable as one.

Whether a particular case meets any of those conditions depends on the facts.

3. The Police Force says the same thing from the other end

Police General Orders, chapter 21, order 21-41 tells officers handling a money dispute three things (this site's summary): they are never to take part in the parties' own settlement discussions; an investigating officer's job is confined to finding out whether an offence has been committed; and where the investigation discloses none, the complainant is to be given its outcome and pointed to the civil courts to recover what he says he is owed. The order is published in both languages.

It is the Force telling its own officers that, where the investigation discloses no offence, the complainant is to be pointed to the civil courts. ⚠ It is not a statement that a beneficiary's money is always a civil matter, and it does not touch the powers the previous section sets out.

4. And the civil court has something the criminal court does not

• Cap. 10 section 33(3) gives the court an express vesting power: on removal, it may provide for the vesting in the successor of any property belonging to the estate.
• Cap. 10 section 67(2)(b) gives the court an express power to declare a recipient who is not a purchaser to be a trustee.
• Cap. 210 section 33(2) says title is not affected by reason only of a conviction.
• And on the criminal side, Cap. 210 section 30, Cap. 221 section 73 and Cap. 227 section 98 are discretionary money powers, none of them a vesting order. That is the distinction: the two civil provisions move the thing, or its legal character; the three criminal ones order a person to hand something back or to pay.

Two provisions numbered 33, in two different Ordinances, doing opposite work.

It Has Been Years — Is It Too Late? The Chain Connects, but One Phrase Stands in the Way

The Limitation Ordinance takes two classes of beneficiary's action outside the periods it prescribes, and one of them requires no proof of fraud. But getting from the Limitation Ordinance to the words "personal representative" takes three definitional steps, and the last of them reads "where the context admits".

1. The two provisions

Limitation Ordinance (Cap. 347), section 20(1):

Paragraph (b) requires no proof of fraud.

The ordinary period, in the same section, at subsection (2):

And for a deceased person's estate, section 21:

Note the opening words of section 21: "Subject to the provisions of section 20(1)". The legislature subordinated the deceased-estate period to section 20(1) in terms.

2. The chain, link by link

Link 1: Cap. 347 section 2(1) gives "trust", "trustee" and "trust for sale" the same meanings as in the Trustee Ordinance (Cap. 29).

Link 2: Cap. 29 section 2, in the definition of trust, provides that the expressions trust and trustee extend to implied and constructive trusts, to cases where the trustee has a beneficial interest in the trust property, and to the duties incident to the office of a personal representative, and that trustee "where the context admits includes a personal representative".

Link 3: Cap. 29 section 3(1):

Corroborating: Cap. 29 section 63(2) — the administration of a deceased person's property is a trust and the executor or administrator a trustee, "within the meaning of this Part", and those five words travel with the sentence.

3. On the text the chain holds — but there is a qualifier

The strongest single piece of support is internal to Cap. 347 itself: section 21 subordinates the twelve-year deceased-estate period to section 20(1). That subordination would be pointless if section 20(1) could never bite on a claim against a personal representative.

The qualifier is the phrase in link 2: "where the context admits".

Whether the context of Cap. 347 section 20(1)(b) admits it is a question of construction for a court. ⚠ The Court of Final Appeal judgment set out immediately below does not answer it.

3a. A Court of Final Appeal judgment on section 20 — decided about a different kind of trustee

It is Hui Chun Ping v Hui Kau Mo, FACV 6/2024, neutral citation [2024] HKCFA 32, on appeal from CACV 377/2022, heard 27 and 28 November 2024 and decided 23 December 2024. The judgment was given by Lord Hoffmann NPJ; Cheung CJ, Ribeiro PJ, Fok PJ and Lam PJ each recorded their agreement with it in a single line.

What the case was. The plaintiff had been engaged as a consultant on a Mainland construction project and was to be remunerated partly by an interest in the profits. He alleged that the defendant, acting as his agent, had by 2006 secretly acquired that interest for himself in breach of fiduciary duty, which would have made the defendant a constructive trustee of it. He sued in 2018. There is no estate, no grant and no personal representative anywhere in the case. The question was whether section 20(1)(b) of Cap. 347 took the claim outside the six-year period in section 20(2).

The classification the Court worked with. It is Millett LJ's, from Paragon Finance plc v D B Thakerar & Co: category 1 trustees are those who accepted fiduciary duties in relation to property before the transaction complained of; category 2 are those whose "trusteeship" arises only out of the wrongful transaction itself. The Court's description of category 1 includes personal representatives in terms:

The boundary between the two categories is the one Viscount Cave drew in Taylor v Davies, which the Court expressly approved. Viscount Cave's words, as the judgment sets them out, are that the exception refers to

and the Court's own sentence on that passage is:

The four holdings. The Court of Appeal had certified four questions and the Court answered all four against the plaintiff.

• Section 20(1)(b). "I therefore agree with the Court of Appeal that section 20(1)(b) of the Ordinance does not apply to this case."
• Section 20(2) applies even so, and the Court accepted that the word "trustee" therefore does different work in the two subsections: "section 20(2) was obviously intended to create a limitation period for all claims for breach of trust, express or constructive, apart from those specified in section 20(1)."
• Accounts and inquiries do not survive the bar on the underlying claim. "If the purpose of a limitation period is to encourage people to assert any claims they have within a reasonable time and avoid the courts having to make decisions upon scanty evidence of what happened in the distant past, it would be strange if ancillary or alternative remedies were exempt from limitation."
• Neither does "equitable compensation" for breach of the no-profit / no-conflict rule, because on the Court's view "a claim in this form is substantially the same as the claim for breach of trust"

And the disposal: "I would therefore affirm the decisions of the Court of Appeal on all four certified points and dismiss the appeal."

Two further things the judgment says are directly relevant. First, on category 2 trustees, "On the contrary, time ran from the moment when the constructive trust arose." Second, on the objection that a limitation period lets a plainly dishonest defendant keep the money — which is the objection every reader of this article will have — "But any limitation period may produce cases in which people who are undoubtedly liable can nevertheless retain wrongful gains."

And one Hong Kong decision is displaced. Secretary for Justice v Hon Kam Wing [2003] 1 HKLRD 524 had treated a corrupt police officer as a category 1 trustee by deeming the government to have authorised him to take bribes on its behalf. Counsel for the plaintiff submitted that that decision was right and the English cases wrong. The Court's answer was: "As I have indicated, I do not agree."

Now the limits.

⚠ This is not a decision about personal representatives. The defendant was an agent who was said to have acquired property for himself out of the very transaction complained of — a category 2 constructive trustee. The Court decided the status of that kind of defendant. It decided nothing about an executor or an administrator, none was before it, and the sentence quoted above about executors and administrators is the Court's account of Millett LJ's classification in an English case, given while explaining where the boundary lies. It is not a holding that a Hong Kong personal representative falls inside Cap. 347 section 20(1)(b).

⚠ It does not touch the "where the context admits" qualifier. The phrase "where the context admits" in the Trustee Ordinance definition, on which the chain from Cap. 347 to "personal representative" turns, is nowhere in the judgment; Cap. 29 was not in issue. That question remains open.

⚠ It says nothing about Cap. 347 section 21, section 26 or section 36. The twelve-year deceased-estate period, the fraud-and-concealment postponement and the preserved equitable jurisdiction were not before the Court and are not decided by it.

⚠ What it does settle is narrower and still worth knowing. Three things. One: being in a fiduciary relationship is not by itself enough to put a defendant inside section 20(1)(b) — the Court rejected exactly that argument. Two: where the underlying claim for breach of trust is time-barred, re-labelling it as a claim for an account, or as equitable compensation for breach of the no-profit / no-conflict rule, does not escape the bar. Three: Secretary for Justice v Hon Kam Wing can no longer be relied on for the contrary.

⚠ Holding two must be read precisely. It is about an account claimed as an ancillary or alternative remedy to a barred claim for breach of trust. It is not about the section 56 duty to exhibit a true and perfect inventory and account, which is a statutory duty imposed on a personal representative by Cap. 10 and which was not before the Court. They are different things, and the judgment addressed only the first.

Where to find it in the judgment: the category-1 description is at paragraph 21; the Taylor v Davies boundary is quoted at paragraph 20 and approved at paragraph 29, where the Court's own sentence about the true boundary also appears; the answer to counsel on Hon Kam Wing and the observation about wrongful gains are at paragraph 31; the section 20(1)(b) conclusion at paragraph 35; the section 20(2) conclusion at paragraph 37; the accounting point at paragraph 38; the no-profit / no-conflict point at paragraph 39; and the disposal at paragraph 40. The sentence about time running from the moment the constructive trust arose is at paragraph 17.

4. Delay in equity

Cap. 347, section 36:

⚠ section 36 preserves the court's equitable jurisdiction; it does not provide that delay by itself defeats a claim. What any period of delay does turns on case law.

4a. One further section runs the other way

Cap. 347 section 26 postpones the limitation period in cases of fraud, concealment or mistake. In a case where the allegation is that something was taken and not disclosed, it may matter, so it is set out. Section 26(1):

And section 26(3) defines deliberate concealment:

Three limits apply: first, section 26 operates on actions "for which a period of limitation is prescribed by this Ordinance" — if section 20(1) applies, there is no prescribed period and section 26 is not on that road; second, subsection (1) opens "Subject to subsection (4)", and subsection (4) protects an innocent third-party purchaser; third, whether anything was deliberately concealed in a particular case is a question of fact.

And one further subsection of section 20 itself belongs here. Section 20(3):

On its own words, a judgment another beneficiary obtains does not carry a beneficiary past his own limitation position. Where one sibling sues in time and another would have met a good defence under the Ordinance, the second takes no greater or other benefit from the first's judgment than he could have got by suing himself. So "let my sister sue and I will come in on the result" does not work, and the subsection is the reason.

5. In summary

What is settled: the provisions take two classes of action outside the prescribed periods; one of them needs no fraud; the three links of the chain are on the face of the statutes; section 21 is expressly subordinate to section 20(1); and section 36 sits alongside all of it. And, from the Court of Final Appeal judgment above: that a fiduciary relationship is not by itself enough to bring a defendant inside section 20(1)(b), and that where the underlying breach-of-trust claim is barred, an account or an equitable-compensation claim put in its place is barred with it — both said about a category 2 constructive trustee, and neither said about a personal representative.

What depends on your case: how limitation works out on your claim. Do not assume that time has stopped running — section 20(1) says that no period prescribed by that Ordinance applies to two classes of action, and whether it reaches a claim against a personal representative turns on the phrase quoted above.

What Can He Say Back? The Ordinance Gives Him a Defence

If the court is satisfied that a trustee has acted honestly and reasonably and ought fairly to be excused, it may relieve him wholly or partly from personal liability for a breach of trust.

1. Trustee Ordinance (Cap. 29), section 60

Three conditions on the face of the section: honestly, reasonably, and ought fairly to be excused. What each of them requires turns on case law.

2. Together with Cap. 10 section 71

Section 71: distribution is not due before the executor's year expires. That point appeared earlier and appears again here, because it is also something the other side can say. It has to be said with its limit: section 71 is about distribution alone and suspends none of his other duties — collecting in, safeguarding, and accounting.

3. One power that looks like yours and is his

Cap. 29, section 24(4):

And section 24(5):

Point by point: the audit power is the trustees' absolute discretion, not more than once a year, and paid for out of the trust funds. The one power that looks like "make him get the books audited" is his, not yours.

And there is a further layer. Cap. 29 section 3A(1) applies the statutory duty of care only "as provided in Schedule 3". Schedule 3's Division 5 is headed "Reversionary Interests, Valuations and Audit", and paragraph 7 of the Schedule reads in full:

Both limbs are about exercising a power, and neither names section 24(4): limb (a) lists section 24(1) and (3) only, and limb (b) reaches a power corresponding to those, not the audit power itself. On the words of the paragraph, this article reads the section 24(4) audit power as outside the statutory duty of care — this site's reading, given carefully because the Division's own heading names audit.

But outside the statutory duty is not outside every duty, and the Ordinance says which displacement it is making. Section 3A(2) provides that where the statutory duty of care applies to a trustee exercising a power, "that duty has effect in place of any common law rules and equitable principles regarding the duty and standard of care owed by the trustee to the beneficiaries of the trust when exercising the power or doing the act." The displacement reaches exactly as far as the statutory duty reaches and no further.

And the Trustee Ordinance is not empty on accounts. Section 63(1) lets a beneficiary apply for the appointment of a judicial trustee, and where one has been appointed, section 63(6) provides:

Section 63(4) adds that the court "may, either on request or without request, give to a judicial trustee any general or special directions in regard to the trust or the administration thereof."

So the accurate statement is about which machinery reaches whom, not about the Trustee Ordinance being silent. Cap. 29 section 63 does contain accounting machinery and a beneficiary can start it — but the annual audit in section 63(6) runs on a judicial trustee the court has appointed, not on the personal representative who is in office now. To make the person presently in office account, the route set out in this article is Cap. 10 section 56 read with Orders 85 and 43 of the Rules of the High Court, as above.

4. And one provision that reaches neither of you

Cap. 29 section 41W provides that the terms of a trust must not relieve, release or exonerate a trustee from liability for a breach of trust arising from the trustee's own fraud, wilful misconduct or gross negligence, nor grant the trustee an indemnity against the trust property for that liability, and that a term which appears to do either is void to the extent that it so appears. But section 41W(1) applies only to a trustee who:

Both conditions must be met. What "acts in a professional capacity" means is sent by section 41W(7) to section 41R(1) — acting in the course of a profession or business consisting of, or including, the provision of trust management services.

On dates the section reaches further than subsection (5) alone suggests. Section 41W(5) provides that the section has effect in respect of a trust created on or after the commencement date of the 2013 amending Ordinance. Subsection (6) then deals with trusts created before that date, and it does not exclude them:

(The hash points to the section's editorial note, which gives the commencement date as 1 December 2013. So an earlier trust comes inside the section a year after that date, rather than staying outside it.)

A date is therefore not the reason section 41W does not reach the administrator this article is about. The reason is subsection (1): an unpaid family member who is not in the business of providing trust management services neither acts in a professional capacity nor receives remuneration for services provided to the trust, so both limbs of (1) fail.

Money and Help: Legal Aid and Two Free Channels

In the Legal Aid Department's own published three-year figures, refusals on merits rose as a share of applications while refusals on means barely moved — and its published refusal examples include an opposite party carrying no insurance and holding nothing worth enforcing against, so that a judgment could not be enforced.

1. The figures, with the Department's own footnote

The Department's own footnote says that where an application fails on the merits and on means alike, it is counted once in each of the two refusal columns. The two therefore may not be added together.

(The table below is wide; scroll horizontally to see all of it.)

Because the columns overlap, the true number of applications refused in 2025 lies between 3,612 and 4,183.

A worked figure

Over the same civil-applications denominator, 2023 against 2025:

• applications fell from 9 558 to 8 636 — down 9.65%;
• refusals on merits fell from 3 656 to 3 612 — down only 1.20%, so the rate rose from 38.25% to 41.82%;
• refusals on means fell from 674 to 571 — down 15.28% — and the rate barely moved, 7.05% to 6.61%;
• appeals allowed went from 36 of 799 heard to 19 of 749 heard, 4.51% to 2.54%.

Two cautions:

• The Department states the 2025 rates as 42% / 7% / 3%; 19 ÷ 749 is 2.54% — the report rounds.
• Applications and refusals in the same calendar year are not the same cohort. The report divides them that way.

2. The gate that tightened

Merits. The Department's published material states (this site's summary) that a prospect of success is not by itself enough: the Director may still refuse where a judgment could not be enforced afterwards. The examples it gives are an opposite party carrying no insurance and holding nothing worth enforcing against; an opposite party who cannot be found; and a case where, given its nature or how little stands to be gained, nobody acting sensibly would fund a lawyer out of his own money.

The first of those examples describes a situation that can arise with a personal representative who has spent what he took. ⚠ The two are not the same thing: spending estate money does not mean he owns nothing himself; property may still be followed; a third party who received it may have his own liability; some cases carry a guarantee; and where the person is a solicitor, professional indemnity is a separate layer again. That example is one of the Department's own illustrations, not a conclusion about estate cases.

3. Two free channels, each with its limits attached

A wills and probate helpline run by a solicitors' professional body. Free consultation capped at 45 minutes; a volunteer solicitor generally replies within 3 working days; enquiries are taken only where the estate in the individual case is worth HK$10 million or less; running since 20 May 2013.

Beyond the HK$10 million estate limit, the page states no financial-eligibility condition.

A procedural advice scheme for unrepresented litigants in the named courts. It gives free advice on civil procedural matters; its excluded list covers applying for a grant of representation; and it expressly declines both to advise on the substance of a case and to act for anybody.

Those two exclusions do different work: the grants exclusion does not shut out a claim against a sitting administrator; the exclusion of anything going to the substance of the case is the one that bites.

4. Neither channel acts for you

Both channels are real and both are free, and neither of them gives you a lawyer to act for you. The helpline is a capped free consultation and the procedural scheme expressly declines to act for anybody; neither is continuing representation.

Why the Provisions Read Like This: a 1971 Transplant and a 2005 Amendment

The provisions that can actually recover something arrived in 1971 as a block of transplanted English law. The two criminal provisions Hong Kong drafted for itself came later — which is why one of them has a death-date floor.

1. Provenance

Most of the civil provisions this article relies on carry an English-ancestor note in the consolidated text, tracing to 1857, 1896, 1925, 1939, 1956 and 1968. The two provisions the question "what can I charge him with" points at — Cap. 210 section 16A, added in 1999, and Cap. 10 section 60J, added in 2005 — carry none. Nor does Cap. 10 section 55, the self-dealing provision. A missing note shows only that the consolidated text records no English ancestor; it does not prove that none exists.

2. The mechanism

A statute transplanted wholesale in 1971 had no occasion to give itself a death-date floor — and section 67(3) says so expressly. An offence created by amendment in 2005 necessarily did — and section 60J(1)(a) says so.

3. The amendment credits

Cap. 10 sections 33, 36, 46, 47, 55, 56, 58, 59, 62, 67 and 71 carry no amendment credits, while in the same chapter section 75 (repealed in 1995) and sections 15A and 60J (both added by 21 of 2005) do.

So the accurate statement is that the misconduct sections are themselves the 1971 text — not that the law has not moved. Sections 15A, 24A, 49AA, 60J and 60K were all added by 21 of 2005 and sit in the same Ordinance.

4. Where the accessible offence came from

Not because the legislature assessed a risk and legislated against it — because the legislature declined to accept an assessment.

In 2005 the Administration proposed removing the requirement that a schedule of assets and liabilities be annexed to the grant. Its reasons included that the office usually falls to somebody the deceased had trusted or to his nearest family, so that mismanagement was not to be expected as the ordinary case, and that running a function to check the schedule would cost more than it was worth (Bills Committee report, paragraph 14). It offered instead a list of provisions already on the statute book as the beneficiary's protection, naming Cap. 10 sections 56 and 58, Cap. 210 section 9 and Cap. 200 sections 32 and 36 (paragraphs 14(e) and 16).

Members did not accept it, taking the view that the Crimes Ordinance provisions the Administration had quoted would not be able to deal with the issue of intermeddling (paragraph 17); the Administration then reversed and made the sworn schedule mandatory (paragraph 18). (This site's summary, with paragraph numbers.)

Sections 15A and 60J are the product of that reversal — and it explains the shape of section 60J(2): the mandatory schedule had to exist before an offence could be defined by reference to it.

5. Section 58

The Administration's 2005 menu included Cap. 10 section 58. Section 58's operative words charge the defendant "as executor in his own wrong", and section 59 has to bring the executor in his own wrong expressly inside the words "personal representative".

This site's reading is that the Ordinance treats those as two categories. That is a reading of the two sections side by side; it does not follow that section 58 is unavailable against an appointed administrator.

And section 59 earns one line: it bites only after the defaulting personal representative has himself died, and only to the extent of his available assets. It is not a remedy against a sitting administrator.

6. Three figures in Cap. 10 that cannot be moved, and one that can

Cap. 10 contains no power to change the three figures below. Its Gazette provisions do other things: sections 15A(7), 24A(15) and 49AA(15) let the Registrar specify the form of the schedules and affidavits by general notice in the Gazette — a power over form, not over what the schedule must state, which subsection (13) fixes — and section 49A lets the Chief Executive in Council amend Schedule 2's list of countries and places.

† The $150,000 figure is quoted from Cap. 10 section 15(1) above.

Counting the subsidiary rules as well, there is a fourth such figure — the $7,000 in Non-Contentious Probate Rules rule 38(5)(a), set out in the sureties section above.

Against that, the level 3 fine in section 60J(9) can be changed — Cap. 221 section 113B(3) gives the Chief Executive in Council an express regulation-making power over Schedule 8.

In one line: within a few sentences of the statute book you meet one money figure with a maintenance mechanism and three without. And the $50,000 has stood since 21 of 2005 section 24 commenced on 11 February 2006 — 20 years and 6 months as at 30 August 2026. The commencement date itself was fixed by Legal Notice: the source note on section 60K(1)(a) in both language texts records an amendment by L.N. 210 of 2005, so the gate date came from a Legal Notice rather than from the Ordinance as enacted.

7. And one word, corrected

Some readers search for devastavit; the Judiciary's probate materials do not use the term.

Hong Kong material puts the same ground in the language of the provisions set out above — breach of a personal representative's duties.