Chung Yi Yuen v. Lau Koon Shing and Another
Read the full judgment text of CACV 46/1999 on BabelCite. This Court of Appeal judgment was delivered on 9 November 1999.
1. The proceedings in the court below were instituted by one Chung Yi Yuen, as "intended administrator"; he was intending to apply for a grant of letters of administration to the estate of Zhong Yizhou, deceased, the victim of a fatal accident. The proceedings were held to have been improperly constituted. On appeal to this court, we upheld the judgment below and we dismissed the appeal with costs.
Cited by 2 cases
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CACV000046B/1999 CACV 46/1999 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 46 OF 1999 (ON APPEAL FROM HCPI 516/1997)
---------------------- Coram : Godfrey & Rogers, JJ.A. Date of Hearing : 9 November 1999 Date of Judgment : 9 November 1999 ---------------------- J U D G M E N T ---------------------- Godfrey, J.A. : 1. The proceedings in the court below were instituted by one Chung Yi Yuen, as "intended administrator"; he was intending to apply for a grant of letters of administration to the estate of Zhong Yizhou, deceased, the victim of a fatal accident. The proceedings were held to have been improperly constituted. On appeal to this court, we upheld the judgment below and we dismissed the appeal with costs. 2. The case does raise a point, of great general and public importance, concerning the right of a person claiming to be an "intended administrator" of the estate of a deceased person to institute proceedings after a fatal accident involving the deceased. (For details of our reasoning, reference may be made to the judgment we delivered on 27 May 1999.) 3. Plainly, the outcome has caused concern to the legal aid authorities, who are in many cases responsible for prosecuting the claim of the widow, and other dependants, of the victim of a fatal accident. Questions arise as to the vires of the Rules Committee in relation to Order 15 rule 6A of the Rules of the High Court, which appears on the face of it to allow an "intended administrator" to institute such proceedings as were under consideration. 4. But when the question of leave to appeal to the Court of Final Appeal was last before this court, on 5 October 1999, letters of administration to the deceased's estate had in fact been issued (though this court was not informed of that fact). So the point was no longer a live one. 5. It is a great pity that no one saw fit to inquire, just before the last hearing before this court on 5 October 1999, what the position actually was. This court was alive to the possibility that letters of administration might have been issued, or might be issued in the near future. In these circumstances, we exacted an undertaking from the plaintiffs' solicitors to notify the defendants' solicitors of a grant of administration within 24 hours of being notified of such a grant themselves. On that footing, we pronounced an order giving the plaintiffs leave to appeal to the Court of Final Appeal, leaving it to the defendants on being so notified to take such steps as they might be advised to take in relation to the appeal to that Court. However, before our order was perfected, we were ourselves apprised of the grant and directed that the matter be restored to the list for further argument. 6. It is now obvious that the point has become academic. Since a grant has been issued, there is nothing to impede the proceedings, and the widow and dependants; and the estate, of the deceased will be able to recover the damages (if any) found due to them. The only impediment is the desire of the legal aid authorities to sort out the procedural problem to which the case has given rise. This is the reason why we are now asked to give leave for the case to proceed to the Court of Final Appeal. 7. For my part, I do not think there is sufficient ground to warrant us in this court giving leave, in effect, to the legal aid authorities, to take this point, in the present case an academic one, to the Court of Final Appeal. I appreciate that there are, of course, consequential results of our order, as to costs and otherwise, but that is not in itself, as it seems to me, sufficient to warrant our sending the case for the consideration of the Court of Final Appeal. If the Court of Final Appeal is of the view that the point is one of great general and public importance and is, moreover, one which ought to be dealt with in this case, notwithstanding that it has become academic, it can say so. It is of course open to the plaintiff to make the necessary application for leave to appeal to the Court of Final Appeal to that court. But we in this court should, in my judgment, refuse this application. Rogers, J.A. : 8. When this matter came before this Court on the initial application for leave to appeal to the Court of Final Appeal, I concluded my remarks by saying :
9. As has already been said, Letters of Administration had in fact already been granted by that stage. Had I known that at that stage I doubt that I would have been of the mind that the matter should go the Court of Final Appeal, as I indicated at the time. 10. In the Court below, the action was stayed pending the grant of Letters of Administration. This Court has decided that was correct. The bar to the plaintiff proceeding to final judgment has thus now been removed. 11. The issues, as far as I can see are, as far as the plaintiff is concerned, the costs which have been thrown away and perhaps some subsidiary issue as to whether the Defendant should be allowed to peruse the probate files for the purpose of part of the decision as to costs. But as far as the Legal Aid Department is concerned, that Department wishes to know the answer to what they say is the procedural complexities which are involved in situations such as arose in this case. After questioning by the Court, counsel for the existing Plaintiff has now stated that the Legal Aid Department is prepared to put all the Plaintiffs in a position where they would not be, in any way, financially prejudiced no matter what the outcome of any appeal to the Court of Final Appeal. 12. Nevertheless, in my view, I agree that any appeal to the Court of Final Appeal is largely academic. In those circumstances, I consider that it is right for the Court of Final Appeal itself to determine whether leave to appeal should be granted rather than this Court. This is particularly so in a case such as this, where, as far as I can see, there is a grave danger of the costs exceeding or at least being high in relation to any damages which might be awarded. 13. For those reasons, I concur that this Court should not grant leave.
Representation: Miss Audrey Eu, S.C. (M/s. Chan & Chuk assigned by D.L.A.) for the Plaintiff Mr. Nicholas Pirie (M/s. Munro Claypole & Reeves) for the Defendants
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Further hearings and rulings under CACV 46/1999