Case Document

DCMP140/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 140 OF 2007

______________________

	IN THE MATTER of the estate of CYC, late of Garden Road Address, Hong Kong, merchant, deceased
	IN THE MATTER OF Section 4 and Section 7 of the Inheritance (Provision for Family and Dependants) Ordinance, Cap.481

BETWEEN

	CMF	1^st Plaintiff
	CMLA	2^nd Plaintiff
	CML	3^rd Plaintiff
	CMY by her sister and next friend CMS also known as CMSE	4^th Plaintiff
	and
	The Personal Representative of the Estate of CYC, deceased for the time being CCKY	Defendant

______________________

Before : H H District Judge Marlene Ng in Chambers (Not Open to Public)

Date of Hearing : 2^nd October, 2007

Date of Decision : 2^nd October, 2007

Date of Handing Down Reasons for Decision : 12^th October, 2007

___________________________

REASONS FOR DECISION

___________________________

I. Background

1.The 1^st to 4^th Plaintiffs are the children of CYC (“Deceased”) who died in December 2004. The 1^st, 2^nd and 3^rd Plaintiffs are the Deceased’s sons and respectively 30, 19 and 18 years old at the time of his death. The 4^th Plaintiff is the Deceased’s daughter and 14 years old at the time of his death. In a few months’ time, the 4^th Plaintiff will attain the age of majority.

2.Madam CCKW is the widow of the Deceased and stepmother to the 1^st to 4^th Plaintiffs (“Stepmother”). The natural mother of the 1^st to 4^th Plaintiffs, Madam WMY (“Mother”), passed away in April 2003. The Mother and Stepmother have 9 and 3 children respectively out of union with the Deceased.

3.The 4^th Plaintiff, who is presently still a minor, acts by her sister and next friend Madam CMS (“Sister”). The Sister claims she was appointed by the Court of First Instance in guardianship proceedings (“Guardianship Action”) as the 4^th Plaintiff’s guardian under section 7 of the Guardianship of Minors Ordinance Cap.13 pending a substantive hearing. The Stepmother claims the Sister was only appointed as guardian pro tempore. The distinction, if any, has no bearing on the issues before me. In any event, I am informed by Mr Cheung and Mr Li, counsel for the 1^st to 4^th Plaintiffs and for the Defendant respectively, the Guardianship Action has been essentially resolved save for the question of costs in view of the 4^th Plaintiff’s imminent majority.

II. Legal proceedings

4.Under the Deceased’s alleged last will said to have been made in 2003, the Stepmother was appointed as sole executrix and beneficiary of the Deceased’s estate. Such will is currently subject to judicial challenge in the Court of First Instance (“Probate Action”).

5.The 1^st to 4^th Plaintiffs, Sister and another sibling CMP are the plaintiffs in the Probate Action whilst the Stepmother is the defendant. In June 2006, the Stepmother was appointed administrator pending suit pending determination of the Probate Action. According to the Stepmother’s affirmation in the present proceedings, the Probate Action is ready to be set down for trial. Mr Li submits she is anxious to proceed.

6.The 1^st to 4^th Plaintiffs commenced the present proceedings in January 2007 under the Inheritance (Provision for Family and Dependants) Ordinance Cap.481 (“IO”). By their Originating Summons, the 1^st to 4^th Plaintiffs seek the following reliefs :

(a) an order that the 1^st to 4^th Plaintiffs be paid such periodical payments under section 4 of IO out of the Deceased’s net estate for such term as the Court thinks fit;

(b) an order that the 1^st to 4^th Plaintiffs be paid such interim periodical payments under section 7 of IO out of the Deceased’s net estate for such term as the Court thinks fit;

(c) an order that the present proceedings be transferred to the High Court under section 25 of IO for final determination of this application; and

(d) such further or other relief as the court may deem fit.

7.According to the affirmations of the Sister filed on behalf of the 4^th Plaintiff, the 4^th Plaintiff also claims for reimbursement of expenses incurred by the Sister for her maintenance.

8.The Defendant opposes the above claims for financial provision on inter alia the following broad grounds :

(a) The Defendant argues that the court should not entertain the application by the 1^st to 4^th Plaintiffs under section 4 of IO until final determination of the Probate Action. After all, it is not their case that there is no reasonable financial provision for them in the last will of the Deceased, but rather they are entitled to shares in the Deceased’s estate either pursuant to the true last will of the Deceased made in 1997 or alternatively under his intestacy.

(b) The Defendant argues that the 1^st to 4^th Plaintiffs have failed to show an immediate need for interim financial provision under section 7 of IO.

(c) The Defendant questions whether the 1^st Plaintiff has the requisite mental capacity to maintain his claim herein, and therefore doubts the authority of the 1^st Plaintiff’s solicitors to act for him.

9.On 31^st July 2007, the 1^st to 4^th Plaintiffs filed a Notice of Appointment to Hear Originating Summons returnable on 21^st August 2007 seeking inter alia the following reliefs :

(a) the Defendant do pay each of the 1^st, 2^nd and 3^rd Plaintiffs interim maintenance out of the Deceased’s net estate at the rate of HK$14,2000.00 per month until further order of the court;

(b) the Defendant do pay the 4^th Plaintiff interim maintenance out of the Deceased’s net estate at the rate of HK$8,000.00 per month until further order of the court.

10.According to the supporting affirmations filed by the 1^st to 3^rd Plaintiffs and by the Sister on behalf of the 4^th Plaintiff, the 1^st to 4^th Plaintiffs are prepared to accept on a further or alternative basis free occupation of any landed property of the Deceased’s estate in lieu of financial provision for their accommodation.

III. The issue

11.At the hearing on 21^st August 2007, I raised with the parties the question whether this court has jurisdiction to deal with reliefs sought by the 1^st to 4^th Plaintiffs in the present proceedings, so I adjourned the hearing inter alia for argument on such issue and on whether the present proceedings should be transferred to the Court of First Instance.

12.Mr Cheung argues that the present proceedings should be transferred to the Court of First Instance under section 25(2) of IO and/or section 41(1) of the District Court Ordinance (“DCO”) because the value of the Deceased’s estate is greater than the applicable jurisdictional limits. Further, the court should also exercise its discretion under section 25(2) of IO and/or section 42 of DCO to transfer the present proceedings to the Court of First Instance because the claims herein may involve probate matters.

13.In the Stepmother’s affirmation in opposition, it is said that the right venue to hear and adjudicate the claim for financial provision is the District Court and there is no sound reason to transfer the present proceedings to the Court of First Instance. Mr Li submits that the Defendant adopted such stance at that time because the 2^nd to 4^th Plaintiffs’ claim for maintenance in the Probate Action was still extant and the proposal by 1^st to 4^th Plaintiffs to transfer the present proceedings to the Court of First Instance was perceived as a patent attempt to cover up the mistake of commencing the claim for financial provision under IO in the Court of First Instance. But this has been resolved when the 2^nd to 4^th Plaintiffs dropped their claim for maintenance in the Probate Action. Mr Li further submits that the Defendant adopted the aforesaid stance also on the assumption that the claim for financial provision herein will not exceed HK$1 million.

14.But having re-considered the position, Mr Li submits that because there is no relevant jurisdiction-conferring provision in either IO or DCO, he is driven to the conclusion that the District Court does not have jurisdiction to deal with applications under IO (including the present claims by the 1^st to 4^th Plaintiffs under section 4 and/or section 7 of IO) irrespective whether the claims exceed HK$1 million or not. In the circumstances, the present proceedings are outside the jurisdiction of the District Court and should be transferred to the Court of First Instance.

15.The effect of Mr Li’s submissions is that whilst all proceedings under IO must be commenced in the District Court as required by section 25(1) of IO, the District Court will have no jurisdiction to deal with any further steps in the proceedings and must transfer all IO cases to the Court of First Instance even if the value of the estate and/or the amount of the claim is small. One is therefore left to wonder why the draftsman or legislature would countenance the absurd and unnecessary requirement of having all IO claims issued out of the District Court when all other steps are to be dealt with by the Court of First Instance. But it is Mr Li’s contention that I am bound to give effect to the legislative language even if the consequences are such that they would not have been contemplated.

16.It appears therefore that both counsel are of the view that the District Court has no jurisdiction in the present proceedings although they rely on different grounds. In light of the wider impact of their contentions on the jurisdiction of the District Court in relation to claims under IO, I heard submissions on the subject. Further, given the significance it may have in relation to claims pursuant to IO generally, both counsel consent to the publication of these Reasons for Decision subject to an anonymity order so that the names of the parties and/or other indicia that may identify the minor 4^th Plaintiff will not be published. To give effect to such order, I now also direct that the Originating Summons in the court file shall not be open for search by strangers to the present proceedings without leave of the court. I am satisfied that in the context of the present proceedings administration of justice is best served by exercising my discretion to make such orders.

IV. Value of the Deceased’s estate

17.There is no dispute the value of the Deceased’s estate is substantially in excess of HK$3 million. The Provisional Certificate of Receipt of Estate Duty issued on 26^th October 2005 lists 33 high-valued landed properties in Hong Kong and gives a provisional value of the estate of HK$295 million. The Stepmother as administrator pending suit is empowered to dispose of 12 properties, which have been provisionally valued over HK$167 million according to the Letters of Administration Pending Suit issued on 19^th July 2006. Some of the 12 properties have been sold and part of the net sale proceeds have been disbursed to settle estate duty and mortgage payments.

V. Jurisdiction

18.The starting point is section 25 which provides inter alia as follows :

“ (1) Subject to subsections (2) and (3), proceedings under this Ordinance shall be commenced in the District Court.

(2) The power to make rules of court under …… section 72 of [DCO] shall for the purpose of [IO] include powers to make provision-

(a) for the transfer to the High Court of any proceedings upon the application of any party or at the instance of the District Court; ……”

19.No rules have been made under section 72 of DCO for the transfer of proceedings to the High Court pursuant to section 25(2)(a) of IO. However, by enactment of the District Court (Amendment) Ordinance 2000, sections 41 and 42 of DCO were introduced to provide for the transfer of proceedings from the District Court to the Court of First Instance.

20.There is no doubt the present proceedings have been properly commenced in the District Court. But does the District Court continue to have jurisdiction after commencement?

21.Mr Cheung submits that it is obvious from the provisions of IO that the District Court has jurisdiction to deal with applications under IO. Under section 2 of IO, “court” is defined as “unless the context otherwise requires, means the Court of First Instance or the District Court”. Sections 4 and 7 as well as other sections of IO all refer to powers of “the court” to make orders without restricting the relevant tribunal to the Court of First Instance.

22.Sections 8 and 9 of IO are illuminating. Section 8 refers to the powers of “the court” to vary, discharge, suspend and/or revive the original order made by “the court” under section 4(1)(a) of IO. Section 9 refers to the powers of “the court” to order payment of lump sums under section 4(1)(b) or 8(2)(b) by instalments. These provisions again do not restrict the relevant tribunal to the Court of First Instance. Section 25(3) of IO goes further to provide as follows :

“ Applications under sections 8 and 9(2) shall be made to the court that made the order to which the application relates; but rules of court may make provision for the transfer of applications from one court to another.”

Mr Cheung suggests that this provision plainly shows that both the District Court and Court of First Instance must have jurisdiction to deal with applications under IO otherwise the reference to “transfer of applications from one court to another” will be meaningless.

23.Both counsel have referred to the case of Leung Kam Yin Joyce v Li Oi Lun [2001] 4 HKC 559, where the value of the deceased’s estate amounted to about HK$5.5 million and the plaintiff claimed for a maintenance sum of HK$1.5 million under IO. Yam J transferred the case to the District Court since it was wrongly commenced in the Court of First Instance. H H Judge Lok held that section 25(1) of IO did not make provision for the District Court to have exclusive and unlimited jurisdiction in terms of monetary claims exceeding those limits set out in sections 32 to 37 of DCO, so there was no restriction preventing him from transferring the case back to the Court of First Instance on the grounds that the District Court did not have jurisdiction to deal with the same and/or the Court of First Instance would be the more appropriate forum.

24.In my view, it is implicit in the judgment of H H Judge Lok that the District Court does have proper jurisdiction to deal with claims under IO, but such jurisdiction is subject to the jurisdictional limits set forth in sections 32 to 37 of DCO. This is recognised by Yam J in Leung Kam Yin Joyce v The Personal Representative of the Estate of Lee Sai Wai, deceased (for the time being Li Oi Lun) HCMP48598/201 (unreported, 25^th September 2001) in his reading of H H Judge Lok’s judgment. In that case, the defendant applied before Yam J to strike out the plaintiff's case or to stay the same on the ground that the application by the plaintiff before H H Judge Lok in the District Court for the case to be transferred to the Court of First Instance was wrong since it would operate as an appeal against Yam J’s earlier order for transfer of the case to the District Court. Yam J disagreed and dismissed the defendant’s application. The learned judge’s reading of the judgment of H H Judge Lok is as follows :

“ 3. On 27 July 2001, the matter came before His Honour Judge Lok after the case was transferred to the District Court …… 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. ……

4. …… 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. …… 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. ……” (my emphasis)

25.This is also consistent with the views of the learned author of Butterworths Hong Kong Probate, Administration and Trustee Handbook 2^nd ed (2007) in the Commentary for section 25 of IO at p.424 as follows :

“ Applications for financial provision orders under [IO] should be commenced in the District Court with power to transfer to the High Court where the value of the estate brings it within that court’s proper jurisdiction ……” (my emphasis)

26.Mr Li does not dispute that the framework of IO and the wording of the provisions therein suggest that the draftsman intended both the District Court and Court of First Instance to be equipped with jurisdiction to handle claims under IO. But he submits that upon a critical review of IO, the legislation does not appear to have any jurisdiction-conferring provision and the ambit of the jurisdiction-conferring provisions in DCO (by quirk of drafting or otherwise) is not wide or clear enough to cover applications under IO. Mr Li therefore argues that the District Court has no jurisdiction to deal with claims under IO (notwithstanding, in my view, the aforesaid assumption in various provisions in IO and in Leung Kam Yin Joyce).

27.I accept that IO does not have any express and/or affirmative jurisdiction-conferring provision as in section 30 of the Matrimonial Proceedings and Property Ordinance Cap.192, which reads as follows :

“ The jurisdiction conferred on the District Court by this Ordinance shall be exercisable by the District Court notwithstanding that by reason of the amount claimed in an application made under this Ordinance the jurisdiction would not but for this section be exercisable by the District Court”

or section 21(1) and (2) of the Employees’ Compensation Ordinance Cap.282, which reads as follows :

“ (1) Save as is provided in this Ordinance and any rules made thereunder, the District Court shall, upon or in connection with any question to be investigated or determined thereunder, have all the powers and jurisdictions exercisable by the District Court in or in connection with civil actions in such Court in like manner as if the Court had by the District Court Ordinance (Cap 336) been empowered to determine all claims for compensation under this Ordinance whatever the amount involved and the law, rules and practice relating to such civil actions and to the enforcement of judgments and orders of the Court shall mutatis mutandis apply.

(2) The Court shall have jurisdiction to hear and determine any action notwithstanding that the amount claimed exceeds the sum mentioned in section 33 of the District Court Ordinance (Cap 336).”

H H Judge Lok in Leung Kam Yin Joyce also referred to the detailed statutory provisions which defined the exclusive jurisdiction of the Lands Tribunal and the Labour Tribunal to deal with certain kind of cases.

28.But even if there is no express and/or affirmative jurisdiction-conferring provision in IO, can jurisdiction be conferred on the District Court by proper implication? Counsel has not argued this point, but one cannot shy away from considering this issue when construing the jurisdiction of the District Court, ie its areas of competency and authority as prescribed by statute. H H Judge Lok said in Wong Kum Chi v Lee Tit Ying [2002] 1 HKLRD 420, 422 :

“ 4. …… Unless there are provisions in [DCO], or other relevant ordinances such as the Inland Revenue Ordinance, Cap. 112, which empower the District Court to determine a particular kind of claim, the District Court simply has no jurisdiction to deal with the matter. Unlike the Court of First Instance, the District Court has no inherent jurisdiction to hear all kinds of claim.” (my emphasis)

It appears therefore the court must have regard to the jurisdiction-conferring provisions of either DCO or other statute(s).

29.It has been said that to confer jurisdiction on a court of law requires express words or the clearest of implications (see Craies on Legislation 8^th ed (2004) para.19.1.17 at pp.576-577). “The question of whether an implication should be found within the express words of an enactment depends on whether it is proper or legitimate to find the implication in arriving at the legal meaning of the enactment, having regard to the accepted guides to legislative intention” (see Bennion, Statutory Interpretation 4^th ed (2002), p.428).

30.An example of implyingcourt jurisdiction from express statutory provisions can be seen in Buckley v Law Society (No 2) [1984] 1 WLR 1101. In that case, following notice to a solicitor of a resolution by The Law Society under paragraph 6(3) of Schedule I to the Solicitors Act 1974 that the society suspected him of dishonesty and prohibiting him from paying out money connected with his practice, the solicitor applied by summons for an order under paragraph 6(5) directing the society to withdraw the notice. It was held that under paragraph 6(5) of Schedule I to the Act the court had jurisdiction to determine whether the notice should be withdrawn. Sir Robert Megarry VC said at pp.1103-1104 as follows :

“ With that, I come to paragraph 6(4). This provides that within 14 days of the service of a notice under sub-paragraph (3), the solicitor, on giving due notice to the society, “may apply to the High Court for an order directing the Society to withdraw the notice.” The natural expectation is (or at any rate my expectation was) that the Act, having given the solicitor the right to apply to the court, would then proceed to confer jurisdiction on the court to hear and determine any such application, and set out the basis on which the jurisdiction was to be exercised. But that is what the Act does not do. The next sub-paragraph, sub-paragraph (5), merely says: “If the court makes such an order, it shall have power also to make such other order with respect to the matter as it may think fit.” In other words, although the Act expressly confers power on the court to make “such other order,” it simply assumes that the court has power to make the order for which the solicitor is empowered to apply.

……

It was common ground that the court must have an implied power to make an order directing the society to withdraw the notice. Paragraph 6(4) ends with words stating that the solicitor “may apply to the High Court for an order directing the society to withdraw the notice,” and paragraph 6(5) begins “If the court makes such an order ……” The only implication that I can see is that the court “shall have power to make such an order”, or words to that effect. I can see no grounds for implying any other words. ……”.

31.Coming back to IO, the provisions therein as discussed in paragraphs 18 and 21-22 above suggest that the only implication is both the District Court and Court of First Instance shall have the power to make orders under inter alia sections 4, 7, 8 and 9 of IO in order to give effect to (a) the definition of “the court” in section 2 of IO which is applicable to these provisions and (b) the provision in section 25(3) of IO which refers to the transfer of applications under sections 8 and 9 from one court to another. However, such jurisdiction of the District Court is subject to the limits set forth in sections 32 to 37 of DCO (see Leung Kam Yin Joyce as per H H Judge Lok in paragraphs 23-24 above).

32.In the circumstances, I am of the view that the District Court has jurisdiction to deal with the claims of the 1^st to 4^th Plaintiffs in the present proceedings subject to the jurisdictional limits in DCO. But in case I am wrong, I proceed to consider the provisions in DCO to see whether it contains any jurisdiction-conferring provision that empowers the District Court to deal with applications under IO.

33.H H Judge Lok in Wong Kum Chi said at p.422 as follows :

“ 5. The main provisions in [DCO] which confer jurisdiction on the District Court are s.32 (for actions of contract, quasi-contract and tort), s.33 (for actions to claim for money recoverable by enactment), s.35 (for actions for recovery of land) and s.37 (for certain specified actions relating to equity jurisdiction). It is clear that the present proceeding does not fall within any of the categories of cases mentioned above, and so the District Court cannot invoke these provisions to establish jurisdiction in the present case.

……

7. …… In other words, s.36, unlike ss.32, 33, 35 and 37, is not a “jurisdiction-conferring” provision. The important wordings are definitely “which would otherwise be within the jurisdiction of the Court”, and so the effect of this section is to impose an additional limitation on the District Court to deal with actions involving title in land. ……

……

9. I have also considered the other provisions in [DCO]. Section 48(1) provides that the District Court, in dealing with the cases before it, has the same power as the Court of First Instance to grant relief, redress or remedy, and s.52 extends the jurisdiction of the District Court to grant injunctions and declarations. However, in my judgment, these provisions only provide ancillary jurisdiction to the District Court to make various kinds of order once the jurisdiction to hear a particular case has been established. The wordings of these provisions are not to extend the primary jurisdiction of the District Court ……”

34.The key question is whether the claims by the 1^st to 4^th Plaintiffs under IO fall within the ambit and limits set forth in sections 32 to 37 of DCO. Both counsel accept (and I agree) that only section 37 of DCO merits consideration in this context. Section 37(1) of DCO provides inter alia that :

“ Subject to the maximum limits in amount or value set out in subsection (2), the Court has the jurisdiction of the Court of First Instance to hear and determine the following proceedings-

(a) proceedings relating to or for the administration of the estate of a deceased person;

……

(e) proceedings for the maintenance or advancement of an infant; ……” (my emphasis)

35.Mr Cheung and Mr Li read the provision in section 37(1)(a) of DCO differently. Mr Cheung submits that its proper interpretation covers proceedings “relating to the estate of a deceased person” or proceedings “for the administration of the estate of a deceased person”, so the District Court has power in the former case to make orders of various kinds relating to the net estate of the deceased under sections 4 and 7 and/or other provisions of IO. On the other hand, Mr Li submits that section 37(1)(a) of IO covers proceedings “relating to the administration of the estate of a deceased person” or proceedings “for the administration of the estate of a deceased person”.

36.Mr Cheung and Mr Li have not cited any authority or other aids to statutory interpretation to support their respective contentions. Nevertheless, I prefer Mr Li’s interpretation. If the provision is, as suggested by Mr Cheung, intended to cover proceedings “relating to the estate of a deceased person” which have nothing to do with “the administration of the estate”, the draftsman of the statute could easily have madeit abundantly clear, say, by adopting the form of wording in section 37(1)(b) of IO (eg “proceedings relating to the estate of a deceased person or proceedings for the administration of the estate of a deceased person”) or by simply rearranging the expression(eg “proceedings for the administration of or relating to the estate of a deceased person”). Yet such forms of drafting have not been adopted.

37.Further, the Rules of the District Court (“RDC”) contains procedural rules for administration actions (see Order 85) without any corresponding equivalent of Order 76 of the Rules of the High Court (“RHC”) for contentious probate proceedings. Under the wide ambit of Mr Cheung’s interpretation of section 37(1)(a) of DCO that covers proceedings “relating to the estate of a deceased person”, such expression includes even probate actions, but this does not sit well with the omission of Order 76 in RDC. In my view, the expressions “relating to” and “for” in section 37(1)(a) of DCO refer to “the administration of the estate of a deceased person”.

38.On such basis, Mr Li argues that applications under IO for financial provision are not proceedings “relating to or for” the administration of the estate of a deceased person since they are claimsagainst the estate and do not concern administration of the estate as such. He relies on Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (18^th ed, 2000), para.31-10 at p.396 as follows :

“ …… Where a person who enters an appearance is interested under a will or codicil he must give the date thereof and show his interest, e.g. as residuary legatee. Where he claims to be interested under an intestacy, he must show how his interest arises. A claim to provision under the Inheritance (Provision for Family and Dependants) Act 1975 is claim against the estate and not an “interest” for this purpose, although a successful claimant will of course have the status of a beneficiary under the trusts of the will or intestacy ……”

39.Mr Li further submits that Leung Kam Yin Joyce does not assiston this question because H H Judge Lok concluded the case ought to be transferred to the Court of First Instance primarily because the amount involved, ie the claim of HK$1.5 million, exceeded what was set forth in sections 32 to 37 of DCO. Mr Li says the additional reason for transfer given by the learned judge, ie the application might involve probate matters, is not a matter of jurisdiction, but a factor that affects the discretion to transfer the case to the Court of First Instance.

40.Even though H H Judge Lok did not precisely identify which provision of sections 32 to 37 of DCO was applicable to claims pursuant to IO, it is quite clear that by affirming the applicability of such sections to claims under IO (ie setting forth the maximum limit of the amount involved in such claims), he did not question the more fundamental premise that claims under IO fall within the prescribed proceedings in which the District Court has jurisdiction (see paragraph 24 above). Had it been otherwise, there would have been no need to consider whether they are within the maximum jurisdictional limits or not. I do not believe Leung Kam Yin Joyce is helpful to Mr Li’s contention.

41.The relevant principles of statutory construction are summarised in Craies on Legislation para.18.1.14 at p.566 as follows :

(a) Legislation is always to be understood first in accordance with its plain meaning.

(b) Where the plain meaning is in doubt, the courts will start the process of construction by attempting to discover, from the provisions enacted, the broad purpose of the legislation.

(c) Where a particular reading would advance the purpose identified, and would do no violence to the plain meaning of the provisions enacted, the courts will be prepared to adopt that reading.

(d) Where a particular reading would advance the purpose identified but would strain the plain meaning of the provisions enacted, the result will depend on the context and, in particular, on a balance of the clarity of purpose identified and the degree of strain on the language.

(e) Where the courts conclude that the underlying purpose of the legislation is insufficiently plain, or cannot be advanced without an unacceptable degree of violence to the language used, they will be obliged, however regretfully in the circumstances of a particular case, to leave to the legislature the task of extending or modifying the legislation.

42.The expression “relating to” is capable of bearing broader or narrower meaning as the context requires. Section 37 of DCO is part of a group of sections, ie sections 32 to 37 of DCO, that deal with the adjudicative jurisdiction of the District Court, and hence section 37(1)(a) must be interpreted in such context according to the intention expressed in the language used.

43.In my view, for proceedings to be caught within the jurisdiction-conferring provision in section 37(1)(a) of DCO, they do not have to be administration actions as defined in Order 85 of RDC or be directly concerned with the administration of the estate of a deceased person. The use of the disjunctive word “or” in section 37(1)(a) of DCO suggests that proceedings “relating to” the administration to the estate of a deceased person are sufficient without having to be “for” the same. The natural and/or purposive meaning of the expression “relating to” is to bring a wider dimension to the scope of section 37(1)(a) of DCO in the context of the District Court’s adjudicative jurisdiction.

44.Again, neither Mr Cheung nor Mr Li has referred me to any authority or other aids to interpretation on the meaning of the expression “relating to” in a statutory context. Notwithstanding Mr Li’s submissions in paragraph 38 above, an application under IO is not a probate action as contemplated in Order 76 of RHC. In my view, it is a statutory claim against the estate of a deceased person that necessarily “relates to” the administration thereof because the effect of any claim or order for financial provision is to bring about a redistribution of the deceased’s estate between the beneficiaries and the applicant by upsetting the existing administration of such estate pursuant to a requirement to pay monies or transfer/settle/acquire property(ies) out of the net estate of the deceased to the applicant. Such construction of the expression in section 37(1)(a) of DCO does not do violence to its natural meaning. In coming to such view, I bear in mind section 19 of the Interpretation and General Clauses Ordinance Cap.1 as follows :

“ An ordinance shall be deemed to be remedial and shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the ordinance according to its true intent, meaning and spirit.”

45.Mr Cheung reminds that IO was enacted in 1995 (with amendments that are insignificant for present purposes in 1998) whilst the legislative amendments enlarging the District Court’s jurisdictional limits (eg the introduction of section 37 of DCO) were passed in 2000. He argues that had there been any legislative intention to abrogate the jurisdiction of the District Court in handling proceedings under IO, it would have been set out expressly and unambiguously in the District Court (Amendment) Ordinance 2000.

46.Mr Li next submits that it is evident from the section heading of “Equity jurisdiction” for section 37 of DCO that such section deals with the equity jurisdiction of the District Court. Since proceedings under IO are not claims in equity, section 37(1) of DCO does not confer jurisdiction on the District Court to handle such proceedings.

47.In making such submission, Mr Li has very fairly drawn my attention to section 18(3) of the Interpretation and General Clauses Ordinance Cap.1 which suggests that a section heading is not decisive of the meaning of the section :

“ A marginal note or section heading to any provision of any Ordinance shall not have any legislative effect and shall not in any way vary, limit or extend the interpretation of any Ordinance.”

Nevertheless, Mr Li argues that a section heading still provides guidance on the reading of the section. He refers to Bennion, Statutory Interpretation pp.574-575 as follows in support :

“ A heading within an Act, whether contained in the body of the Act or a Schedule, is part of the Act. It may be considered in construing any provision of the Act, provided due account is taken of the fact that its function is merely to serve as a brief, and therefore necessarily inaccurate, guide to the material to which it is attached.

COMMENT

Headings are unamendable descriptive components. …… ‘… the construction of an Act cannot be controlled by cross-headings’. However, it can often be assisted by them, and it is the court’s duty to take advantage of this aid when arriving at the legal meaning of an enactment. Nevertheless a heading is of very limited use in interpretation because of its necessarily brief and inaccurate nature. Any heading can only be an approximation, and may not cover all the detailed matters falling within the provision to which it is attached. ……

It is clear that, in accordance with the informed interpretation rule, most modern judges consider it not only their right but their duty to take account of headings in Acts. ……

Where a heading differs from the material it describes, this puts the court on inquiry. However it is most unlikely to be right to allow the plain literal meaning of the words to be overridden purely by reason of a heading. ……”

48.Mr Li has also referred me to two judgments of Acting Registrar Au-Yeung (as she then was) in Overseas Trust Bank Limited v Ngai Yiu Ming and So Ching Yi Winnie DCMP2780/2000 (unreported, 28^th November 2000) and The Hongkong and Shanghai Banking Corporation Limited v Hui Lai Kai, Poon Yin Fan formerly known as Poon Siu Fan, Poon Tsang Tsang and Poon Yeung Yeung DCMP2460/2000 (unreported, 8^th December 2000).

49.Those two cases are typical mortgage actions where the amount claimed was in excess of HK$600,00.00 (being the then jurisdictional limit for contract claim of the District Court) but less than HK$3 million. The learned Acting Registrar took the view that when the mortgagee sued for monies under a mortgage, he was in fact enforcing the personal contract for payment of a debt. In the circumstances, section 32 of DCO, which set forth the jurisdiction of the District Court for contractual claims, was applicable, and section 37 of DCO was not because the claim was not for “foreclosure or redemption of a mortgage” or for enforcing equitable rights under a charge. The claims in these two cases were therefore outside the jurisdiction of the District Court, and the learned Acting Registrar granted orders for transfer to the Court of First Instance.

50.Mr Li seizes on the learned Registrar’s comment in her judgments that section 37 of DCO “only deals with the equity jurisdiction of the District Court”. In my view, such comment must be read in the context of the discussion in two cases, which is focused on the applicability of section 37(1)(c) of DCO (ie “proceedings for the foreclosure or redemption of a mortgage or for enforcing a charge or lien”) to the subject claims.

51.If one casts an eye through the various provisions of section 37 of DCO, it is not hard to find that it is not strictly limited to “equity jurisdiction”. For example, whilst proceedings for the execution of a trust or for declaration that a trust subsists seek equitable relief, the reference to “proceedings under section 3 of the Variation of Trusts Ordinance (Cap.253)” in section 37(1)(b) plainly seeks a statutory remedy. Further, Mr Li accepts that “proceedings for foreclosure …… of a mortgage” in section 37(1)(c) do not necessarily refer to a claim in equity. Still further, “proceedings for the dissolution or winding up of a partnership” in section 37(1)(f) may well be a claim for statutory relief under section 37 of the Partnership Ordinance Cap.38.

52.Mr Cheung submits that the section heading for section 37 of DCO is misleading and can be disregarded. It is not lost on this court that H H Judge Lok had at p.423 of his judgment in Wong Kum Chi also regarded the section heading of section 36 of DCO misleading, ie whilst it is not a jurisdiction-conferring provision, its section heading is entitled “Jurisdiction where title in question”. In my view, the section heading of section 37 of DCO is merely a brief approximation that does not cover all the detailed matters falling within the provision. It is therefore inappropriate to let it override the natural and/or purposive meaning of section 37(1)(a). In coming to this view, I have borne in mind Mr Li’s caution that the District Court was created by statute and its jurisdiction should be founded upon the empowering provisions in DCO and/or other statute(s).

53.In the circumstances, I conclude that the District Court does have jurisdiction to deal with applications under sections 4 and 7 of IO. Further, where the applicant is a minor (such as the 4^th Plaintiff in the present proceedings), a claim for maintenance under IO falls within section 37(1)(e) of DCO as “proceedings for the maintenance and advancement of an infant”.

54.I now turn to consider whether the claims by the 1^st to 4^th Plaintiffs in the present proceedings exceed the jurisdictional limits set forth in section 37(2) of DCO.

55.According to section 37(2) of DCO, the maximum limits in amount or value referred to in section 37(1) for inter alia an estate of a deceased person (in the case of section 37(1)(a)) and the property of the infant (in the case of section 37(1)(e)) are :

(a) HK$1 million where the proceedings do not involve or relate to land;

(b) HK$1 million where the proceedings partly involve or partly relate to land and the part that does not so involve or does not so relate exceeds HK$1 million in amount or value;

(c) HK$3 million where the proceedings wholly involve or wholly relate to land;

(d) HK$3 million where the proceedings partly involve or partly relate to land and the part that does not so involve or does not so relate does not exceed HK$1 million in amount or value.

56.Mr Cheung submits that in ascertaining the jurisdiction of the District Court, section 37 of DCO is not concerned with the value of the claim but with the value of the subject matter of the litigation ie the value of the estate of the deceased in the case of section 37(1)(a) of DCO. Mr Li submits that is not how section 37 of DCO should be read. He relies on the English position stated in Williams, Mortimer and Sunnucks on Executors, Administrators and Probate para.59-11 at pp.833-834, ie the guidelines for allocating proceedings to the English High Court and County Court under the Inheritance (Provision for Family and Dependants) Act 1975 turn on the “amount of money which the plaintiff or applicant could reasonably state to be the financial worth of the claim to him” under paragraphs 7 and 9 of the High Court and County Court Jurisdiction Order 1991 and not on the size of the estate. Mr Li has not referred me to the High Court and County Court Jurisdiction Order 1991. But I am not persuaded the English position is of assistance because according to the learned text the High Court and County Court Jurisdiction Order 1991 gives the County Court unlimited jurisdiction under the Inheritance (Provision for Family and Dependants) Act 1975 which is in contra-distinction to the limited jurisdiction of the local District Court.

57.I prefer Mr Cheung’s submission that the maximum limits in amount or value referred to in section 37(1)(a) is referable to the value of the estate of a deceased person. This is the only natural reading of section 37(1)(a) in conjunction with 37(2)(a) of DCO. Mr Li’s interpretation renders the expression “an estate of a deceased person” redundant. That cannot be right.

58.In addition to a claim for final and/or interim maintenance, the 1^st to 4^th Plaintiffs further or alternatively seek rent-free occupation of a landed property owned by the Deceased. I am not sure whether such relief is sought under section 4(1)(d) of IO which refers to settlement rather than occupation of property, but I need not form any definitive view on this issue. There is no dispute that the amount or value of the Deceased’s estate or indeed (as Mr Li concedes) the value of any single landed property of the Deceased’s estate exceeds HK$3 million. Clearly, such claim is outside the jurisdictional limits of the District Court.

59.As regards the monetary claims of the 1^st to 4^th Plaintiffs, I agree they should be considered together for the 1^st to 4^th Plaintiffs seek financial provision out of the same estate of the Deceased. As discussed above, each of the 1^st to 3^rd Plaintiffs applies for financial provision of HK$14,200.00 a month and the 4^th Plaintiff applies for financial provision of HK$9,800.00 a month for their accommodation, living, education and/or medical expenses under section 4 of IO.

60.Mr Cheung submits that the monetary claims easily exceed HK$1 million. He refers to section 21 of IO which provides inter alia that “[where] an order is made under section 4 then for all purposes, …… the will or the law relating to intestacy, or both the will and the law relating to intestacy, as the case may be, shall have effect and be deemed to have had effect as from the deceased's death subject to the provisions of the order” (my emphasis). Given the young age of the 1^st to 4^th Plaintiffs, the indefinite term of their claim for financial provision under section 4 of IO (ie “as the court thinks fit” as prayed for in the Originating Summons), and almost 3 years have elapsed since the Deceased’s death in December 2004, Mr Cheung says that the claims of the 1^st to 4^th Plaintiffs easily exceed the monetary limit of HK$1 million. Mr Cheung argues that the term of the periodical payments is left to be fixed by the court at the time of making the order after having considered the matters set out in section 5 of IO and/or upon variation of the order pursuant to sections 8 and 25(3) of IO, and there is no requirement in IO for spelling out the same in the application.

61.Mr Li complains that the 1^st to 4^th Plaintiffs have not clarified the precise total amount of final and interim maintenance since they have failed to specify the term for the periodical payments, so there is doubt as to whether the claim for maintenance exceeds HK$1 million. Further, the deeming provision in section 21 of IO is not mandatory or automatic but subject to the provision of the order for maintenance. Mr Li argues that the factual bases put forward by the 2^nd to 4^th Plaintiffs in the present proceedings for seeking financial provision for future (and not past) studiesby the 2^nd and 3^rd Plaintiffs as well as for future tertiary education for the 4^th Plaintiff (when she was previously only a secondary school student) make it inappropriate for the eventual order for periodical payments (if any) to be made retrospectively.

62.At this stage when the court is considering the matter of jurisdiction, it is unnecessary and indeed inappropriate to form any definitive view as to the final merits of the claims of the 1^st to 4^th Plaintiffs. Jurisdiction is not determined by the ultimate merits but rather on the nature and/or value of the claim unless it is wholly unarguable. Approaching the matter on such basis, I cannot say that Mr Cheung’s submissions on the value of the monetary claim are unarguably bad. Indeed, there is an arguable case that the monetary claims of the 1^st to 4^th Plaintiffs exceed HK$1 million and therefore outside the jurisdiction of the District Court.

63.In the case of section 37(1)(e) of DCO, the corresponding maximum limit in amount or value relates to the property of the infant. However, there is no property of the infant (ie the 4^th Plaintiff) to speak of in the present proceedings because financial provision is not sought against her property but against the Deceased’s estate. That itself is enough to take the 4^th Plaintiff’s claim outside the jurisdiction of the District Court.

64.In the circumstances, I conclude that the District Court does not have any jurisdiction to deal with the present claims of the 1^st to 4^th Plaintiffs under IO, which must be transferred to the Court of First instance pursuant to section 41 of DCO.

VI. Discretion to transfer

65.But if I am wrong and the District Court does have jurisdiction to deal with the present proceedings, I proceed to consider whether I should exercise my discretion to transfer the present proceedings to the Court of First Instance pursuant to section 42 of DCO.

66.Mr Cheung refers to Leung Kam Yin Joyce where H H Judge Lok transferred the application under IO before him to the Court of First Instance partly because the claim might involve probate and matrimonial matters and so the Court of First Instance would be the more appropriate forum to determine the application. Mr Cheung submits that the present proceedings likewise involve probate matters and should be transferred to the Court of First Instance.

67.Mr Li adopts a neutral stance on the question of whether the present proceedings should be transferred to the Court of First Instance.

68.In my view, this is an appropriate case for transfer to the Court of First Instance. Although the Guardianship Action is now almost at an end, the Probate Action is still ongoing. It is unnecessary to set out in detail the factual matters canvassed in the affirmations filed by the parties in the present proceedings. However, a brief summary will highlight why it is better for the Court of First Instance, which is seized of the Probate Action, to deal with the present proceedings.

69.It suffices to say that the affirmations filed on behalf of the 1^st to 4^th Plaintiffs deal with inter alia the following matters :

(a) the historical relationship amongst the Deceased, Mother, Stepmother and 1^st to 4^th Plaintiffs;

(b) the maintenance of the 1^st to 4^th Plaintiffs in terms of financial support, pocket money, accommodation and other services provided by the Deceased prior to his death;

(c) the course of the 1^st Plaintiff’s mental illness and its adverse impact on his ability to work and maintain himself;

(d) the difficulties faced by the 2^nd and 3^rd Plaintiffs in respect of their education following the Mother’s death and their subsequent employment history;

(e) the 2^nd and 3^rd Plaintiffs’ intentions to return to studies;

(f) the 4^th Plaintiff’s health and medical treatment, and her intentions in relation to future studies;

(g) the living, employment and other conditions of the 1^st to 4^th Plaintiffs after the Deceased’s death and after the alleged expulsion by the Stepmother.

70.The affirmation of the Stepmother filed on behalf of the Defendant in the present proceedings disputes many of the factual allegations in the affirmation evidence of the 1^st to 4^th Plaintiffs and set out inter alia the following :

(a) the historical relationship of the various players, eg the deterioration in the relationship between the Deceased and Mother, the demands on the Deceased for money by the Mother and her children, and the rebellious attitude by the Mother’s children towards the Deceased and Stepmother;

(b) the Deceased’s disillusionment and decision to disinherit inter alia the Mother’s children;

(c) the Stepmother’s belief that the 1^st to 4^th Plaintiffs had other financial income and sources;

(d) the Stepmother’s concern as to the deprivation of rental income from the Deceased’s estate for looking after other dependants and minor children as a result of financial provision (if any) provided to the 1^st to 4^th Plaintiffs;

(e) the Stepmother’s knowledge that the 1^st Plaintiff was not dependent on the Deceased at the time of the latter’s death;

(f) the Stepmother’s doubts over the 1^st Plaintiff’s mental illness, his alleged nil working capacity and the alleged cost of medical treatment given modest public sector medical charges;

(g) the carefree and idle lifestyle adopted by the 2^nd and 3^rd Plaintiffs that raises doubt as to the genuineness of their alleged intention to return to studies;

(h) the questionable motives of the 1^st to 4^th Plaintiffs in pursuing the present applications;

(i) the Stepmother’s denial of any failure to properly care for the 4^th Plaintiff, and her open offer of maintenance for the 4^th Plaintiff from her own pocket with no strings attached;

(j) the Stepmother’s denial of any expulsion of the 2^nd to 4^th Plaintiffs who left on their own accord, and the 2^nd to 4^th Plaintiffs’ instigation of harassment against her.

71.All the above factual matters are hotly disputed. Although Mr Li submits that the Defendant reserves the right to dispute the relevancy of the historical matters for the purpose of the present proceedings, the reality is that the affirmation evidence (including those filed on behalf of the Defendant) has put these matters in issue. In the ongoing Probate Action, the plaintiffs therein challenge the validity of the will of the Deceased made in 2003 whilst the Stepmother maintains it is the Deceased’s true and last will. One of the issues is the testamentary wishes of the Deceased, ie whether the Deceased intended to disinherit inter alia the Mother’s children. In such circumstances, the Deceased’s relationship with the Stepmother, Mother and their children are probably matters that will be canvassed in the Probate Action. As seen from above, similar matters have been raised in the affirmation evidence in the present proceedings. Bearing in mind the factors the court has to consider under section 5(1) and (4) and section 7(3) of IO and looking at the matter in the round, I am persuaded that the Court of First Instance is the more appropriate forum to determine the present application.

VI. Conclusion

72.In the circumstances, I have at the hearing made an order directing the whole of the present proceedings to be transferred to the Court of First Instance.

73.Mr Cheung and Mr Li are in agreement on the issue of costs. I therefore made the following orders at the hearing :

(a) costs of the present proceedings up to 2^nd October 2007 be reserved to the discretion of the Court of First Instance;

(b) costs of the hearings on 21^st August 2007 and 2^nd October 2007 be costs in the cause with certificate for counsel;

(c) there be legal aid taxation for the 1^st to 4^th Plaintiffs’ own costs.