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)

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BETWEEN

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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 application is 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 that an insolvent applicant with a current (but not urgent) liability to repay a substantial debt would be within the definition of the phrase.”

3.In his submissions, Mr Lam (appearing for the Plaintiff) contended that the test we have laid down in our judgment is too narrow and 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 natural meaning as understood against the statutory scheme of Cap 481 as a whole without any further gloss.  We held it would not be right to restrict the meaning of the phrase to “urgent” need nor to place within its compass every “current” need.  Urgency and currency of a need can be factors which the court must consider on the facts of each case to determine whether the statutory requirement is 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 current insofar 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 in the 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 1^st Intervener dated 3 May 2013 and the summons of the 2^nd to 4^th 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.

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 1^st Intervener.

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