Tam Mei Kam v. Hsbc International Trustee Ltd and Others

CACV 181/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 181 OF 2016

(ON APPEAL FROM HCMP NO 2981 OF 2004)

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Before: Hon Lam VP, Cheung JA and Kwan JA

Dates of Written Submissions: 9, 20, 23 and 30 March 2017

Date of Judgment: 26 April 2017

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the Court):

1.On 10 February 2017, we handed down our judgment dismissing the appeal of Madam Tam against the decision of L Chan J on 1 September 2016 in which he refused her application for a lump sum order under the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481 (“the Ordinance”) out of the net estate of her deceased daughter and made instead an order for periodic payments. Madam Tam filed an application on 20 February 2017 seeking leave to appeal to the Court of Final Appeal. She contended that the intended appeal would involve questions of great general or public importance. She also relied on the “or otherwise” limb that leave to appeal should be granted because of substantial and grave injustice has been done to her.

2.Having considered the written submissions lodged by all the parties, we think it appropriate to determine the application on paper.  Madam Tam has sought an oral hearing.  But we do not think any useful purpose is to be served by an oral hearing, having regard to the fact that Madam Tam has been acting in person throughout and has provided detailed submissions in English, and, as on most occasions of her appearing in court, when she was called on to address the court, she did not have anything of substance to add to her written submissions in English.

Questions of great general or public importance

3.Madam Tam listed four questions involved in the intended appeal as questions of great general or public importance.

4.Question (a) is made up of a host of sub-questions and reads as follows:

“in considering what is the proper form of order to be made under s 4(1) of Cap 481,

(i) what is the proper boundary of s 5(1)(g), specifically, whether it can extend to the purported wishes of the deceased testator;

(ii) what is the proper boundary of s 5(3), specifically, whether it can extend to speculation on the health of the Applicant, or merely a factor for consideration only in balancing the competing interests of the beneficiaries;

(iii) whether ss 5(1)(g) and 5(3) of Cap 481 are overriding factors over and above ss 5(1)(a)-(f);

(iv) whether the legislative intent of Cap 481 must be at the top of a judge’s mind and prevail in the exercise of such a discretion;

(v) whether in the circumstances of a substantial net estate and no competing beneficiaries with the Applicant, ss 5(1)(a), (d) and (e) of Cap 481 ought to be given overriding weight;

(vi) whether in the strength of ss 5(1)(a) and (e) of Cap 481 and with reference to relevant authorities, a lump sum payment order is the norm or an established principle;

(vii) what is the true distinction between a spousal relationship and non-spousal relationship as far as the basic amount and the form of order is to be concerned;

(viii) whether Whytte v Ticehurst [1986] Fam 64 is irrelevant in the considerations of the respective “needs basis” and “divorce basis” standards in the maintenance relief and matrimonial context; and

(ix) what is the true legal effect and applicability of In re Besterman (Deceased) [1984] 1 Ch 458 CA.”

5.Madam Tam submitted that the Court of Appeal had answered (a)(i), (ii), (iii), (v), (vii) wrongly and did not deal with (a)(iv), (viii) and (ix) in its judgment.

6.We do not think (a)(i) and (vi) reasonably arguable, for the reasons given in §§34, 39 and 48 of our judgment.

7.(a)(ii) is premised on the specific fact situation of this particular case.  It cannot be regarded as a question of law of great general or public importance.

8.(a)(iii) and (iv) do not arise from the holdings in our judgment.

9.(a)(v) is a contention that a particular factor should be given more weight in the circumstances of this particular case.  It cannot be regarded as a question of law of great general or public importance.  Nor do we think it reasonably arguable to ask the appeal court to interfere with the weight attached by the trial judge to a particular factor, see §50 of our judgment.

10.(a)(vii), (viii) and (ix) are academic questions which do not arise.  They are not related to the actual circumstances and cannot have any meaningful impact on the result.

11.We refuse to give leave to appeal on any of the questions in (a)(i) to (ix).

12.Question (b) formulated by Madam Tam reads as follows:

“what is the true effect and scope of the clean break or finality principle as laid down by the Court of Final Appeal in Raymond Kin Sang Hung v Mimi Kar Kee Wong Hung (2015) 18 HKCFAR 210”.

13.This is again a wholly academic question which does not arise.  We refuse to give leave to appeal for a question of no relevance.

14.Question (c) is in these terms:

“whether it is open to the trial judge to put aside the parties’ agreement on basic amounts of computation and make an arrangement out of his own”.

15.This again does not arise from the holdings of our judgment.  To the contrary, we have held that there was no parties’ agreement on basic amounts of computation and rejected her contention that the order for periodic payments was in violation of the parties’ agreement on the multiplicand. See §§15 to 21 of our judgment.  We refuse to give leave to appeal for this question.

16.The last question, question (d), reads:

“whether being too general and perfunctory can be the sole ground to reject completely the whole of a piece of expert evidence in circumstances where no competing equity is at stable [sic].”

17.On any view, this question is not reasonably arguable.  We refuse to give leave to appeal.

The “or otherwise” limb

18.It was contended that leave to appeal should be given on the “or otherwise” limb in that Madam Tam has suffered substantial and grave injustice.  In support of this contention, she repeated the assertion there was a parties’ agreement on basic amounts of computation and only the question of the multiplier was outstanding in case a lump sum payment was ordered.  We reject this for the reasons already given.  We do not think it reasonably arguable to contend that our holding was in error or that there was no evidential basis for it.

19.The other matter relied on by Madam Tam was her costs liabilities.  We have dealt with that in §54 of our judgment.

20.We see no basis to exercise discretion to grant leave to appeal on the “or otherwise” limb.

Order

21.For the above reasons, we dismiss Madam Tam’s application with costs to the respondents.

22.Both respondents have submitted their statements of costs for summary assessment, which we will undertake.  We find the amounts claimed reasonable and will allow the costs claimed for each without any reduction.

Written submissions by the Applicant (Appellant), acting in person

Written submissions by Mr Bernard Man SC, instructed by Clifford Chance, for the 1^st Respondent (1^st Respondent)

Written submissions by Wong, Shum & Co, for the 3^rd Respondent (2^nd Respondent)