ACLS v. HSB(T)L AND OTHERS

CACV 136/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 136 OF 2012

(ON APPEAL FROM FCMP NO. 270 OF 2010)

________________________

BETWEEN

ACLS Plaintiff
and
HSB(T)L Defendant
and
AYL 1st Intervener
ALSH 2nd Intervener
CPC 3rd Intervener
ACW 4th Intervener

____________

Before : Hon Cheung, Fok and Lam JJA in Court

Date of Hearing : 29 May 2013
Date of Decision : 29 May 2013

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DECISION

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Hon Lam JA (giving Decision of the Court):

1. We dismissed the appeal of the Plaintiff on 1 February 2013. She now seeks leave to appeal to the Court of Final Appeal. The applicationis opposed by the Interveners.

2. In the Notice of Motion dated 28 February 2013, the Plaintiff indicated that leave is sought pursuant to Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance on the ground that there is a question of great general or public importance for the determination of the Court of Final Appeal.The question was framed as follows,

“Whether the phrase ‘is in immediate need of financial assistance’ in section 7(1) of the Inheritance (Provision for Family and Dependants) Ordinance Cap 481 carries with it some connotation of urgency (if so, to what degree) so that an applicant must prove that she has a need which‘calls for immediate attention’, or whether the phrase simply means ‘is in current need of financial assistance’ so thatan insolvent applicant with a current (but not urgent) liability to repay a substantial debt would be within the definition of thephrase.”

3. In his submissions, Mr Lam (appearing for the Plaintiff) contended that the test we have laid down in our judgment is too narrowand it would be impossible for anyone to satisfy such test.

4. What we have decided is that the phrase “in immediate need of financial assistance” should be given its ordinary and naturalmeaning as understood against the statutory scheme of Cap 481 as a whole without any further gloss. We held it would not be rightto restrict the meaning of the phrase to “urgent” need nor to place within its compass every “current” need. Urgency andcurrency of a need can be factors which the court must consider on the facts of each case to determine whether the statutory requirementis satisfied. But none of them can be conclusive. The whole circumstances of the case must be taken into account.

5. The question as framed boils down to this: instead of immediate need, whether the court should only examine if the need is currentinsofar as a plaintiff with no means of her own is concerned.

6. We are not going to repeat what has been said in our judgment as to the scheme of the statute. For the reasons already given inthe judgment, we do not think the Plaintiff’s contention is reasonably arguable.

7. We do not think the Plaintiff satisfies the criteria in Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance. Leave to appeal to the Court of Final Appeal is refused.

8. In the circumstances, we do not need to deal with the summons of the 1st Intervener dated 3 May 2013 and the summons of the 2nd to 4th Interveners dated 3 May 2013 seeking security for costs of the intended appeal.

9. We also order the Plaintiff to pay the costs of the Interveners, including the costs of the summonses for security for costs.

(Peter Cheung)
Justice of Appeal
(Joseph Fok)
Justice of Appeal
(M H Lam)
Justice of Appeal

Mr Kenneth Lam, instructed by Simon Chan & Co, for the Plaintiff.

Attendance of the Defendant is excused.

Ms Belinda Ma, instructed by Henry Fok & Co, for the 1st Intervener.

Mr Kevin Li, instructed by Y T Tong & Co, for the 2nd to 4th Interveners.