Leung Kam Yin Joyce v. Lee Sai Wai

HCMP004859B/2001

HCMP4859/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.4859 OF 2001

---------------------------

BETWEEN

----------------------------

Coram: Hon Yam J in Chambers

Date of Hearing: 25 September 2001

Date of Decision: 25 September 2001

-------------------------

D E C I S I O N

-------------------------

1.The plaintiff herein is the widow of Lee Sai Wai, deceased. The deceased died on 23 April 2000 leaving a will. Under his will the deceased did not provide anything to the plaintiff. His whole estate was given to his sister the defendant herein, being also the executrix of the will, and his two other brothers. The schedule of property attached to the certificate of exemption showed that the net principal value of the estate of the deceased was about $5.5 million.

2.The plaintiff therefore applied under section 4 of the Inheritance (Provision for Family and Dependents) Ordinance, Cap.481 ("the Ordinance") for reasonable provision to be made out of the deceased estate. The application was made by way of an originating summons in the Court of First Instance filed on 23 October 2000. The case came before me on 16 May 2001. It was there and then pointed out to the plaintiff's solicitor that according to section 25(1) of the Ordinance, the application should be made in the District Court. Instead of dismissing the plaintiff's application on the ground that procedurally it was wrong to institute the proceedings in the Court of First Instance, I made an Order of transfer of the case to the District Court pursuant to the same section 25(2)(b) of the Ordinance. Whether that decision is correct is a matter for the Court of Appeal should the defendant decide to appeal against my order. There was no such an appeal.

3.On 27 July 2001, the matter came before His Honour Judge Lok after the case was transferred to the District Court and another District Court's miscellaneous proceedings number has been given for the proceedings, i.e. DCMP 1525/2001. His Honour Judge Lok made an order of the transfer of the case to the Court of First Instance on the ground that the case involved a sum of more than $600,000 which is therefore beyond the jurisdiction of the District Court. It was the plaintiff's submission that the sum involved is about $1.5 million.

4.The defendant now applied before me that I should strike out the plaintiff's case or stayed the same on the ground that the plaintiff was wrong to apply in the District Court for the case to be transferred to the High Court. It was submitted by Mr Chung for the defendant that such an application before Judge Lok would operate as an appeal against my order. In my view, that is not so. Judge Lok decided that the case should be transferred to the High Court on the ground of jurisdiction only since the amount involved is beyond the stipulated jurisdiction of the District Court. Judge Lok did not decide that my order of transfer on 16 May 2001 was wrong or otherwise make an order reversing my order as submitted by Mr Chung for the defendant. In fact he accepted that the case should be instituted in the District Court as provided by section 25 of the Ordinance. He transferred the case on the ground of lack of jurisdiction because the amount involved will be beyond the jurisdiction of the District Court. Whether his order of transfer is correct is a matter for the Court of Appeal. The defendant did not appeal against Judge Lok's order. There is no reason, as far as I can see, that I should :

(a) dismiss the plaintiff's case;

(b) stay the present proceedings; or

(c) transfer the case back to the District Court as applied for by the defendant before me.

5.In short if the defendant considered that the plaintiff should have commenced the case in the District Court and I was wrong to make an order of transfer instead of dismissing the plaintiff's application all together, that is a matter for the Court of Appeal. If the defendant considered that Judge Lok should not transfer the case to the Court of First Instance, that is also a matter for the Court of Appeal.

6.For the aforesaid reason, I must dismiss the present application of the defendant with costs to the plaintiff in any event. The plaintiff's own costs shall be taxed according to the Legal Aid Regulations.

Representation:

Mr Charles L.F. Tse of Messrs Yip, Tse & Tang, for the Plaintiff

Mr Raymond Chung of Messrs K.C. Ho & Fong, for the Defendant