Tam Mei Kam v. Hsbc International Trustee Ltd and Others

HCMP 2981/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2981 OF 2004

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D E C I S I O N

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1.This is an application for leave to appeal.

Background

2.The applicant has been receiving monthly maintenance from the estate of her daughter, Madam Mui Yim Fong, deceased.  The 1st respondent is the sole executor of Madam Mui’s estate.

3.I have ordered on 21 February 2014 that Madam Tam be entitled to maintenance at HK$152,000 per month, but HK$104,000 of this sum had to be paid to her trustees in bankruptcy and she could have the use of the balance of HK$48,000 per month.

4.I have also authorised the 1st respondent in an order of 5 November 2013 to pay all reasonable medical expenses incurred by the applicant subject to the availability of funds and satisfactory production of documentary evidence.

5.The applicant is 91 years old.  On 18 March 2014, she suffered a fall when disembarking from a tram and fractured her tibia/fibula.  She was hospitalized for 17 days and discharged on 4 April 2014.  Her doctor advised her that her recovery period would be longer and she had to move around in a wheelchair.

6.She wrote and asked the 1st respondent on 9 April 2014 to provide her HK$1,000,000 to purchase a seven-seater private car with electrically operated wheelchair elevation mechanism installed at the rear.  This was to solve her transport and mobility problems.  She further asked the 1st respondent for monthly sums of HK$10,000 to engage a chauffeur and HK$18,000 to HK$20,000 to employ a nurse.  The nurse was to look after her in taking medicine in a timely manner and to assist her in her use of the wheelchair.  She described these expenditures as medical expenses. 

7.The 1st respondent declined her requests on 15 April 2014 on the ground that her requests exceeded the scope of my orders dated 5 November 2013 and 21 February 2014.

Application for extra maintenance

8.She then applied to me on 15 April 2014 for an order that the 1st respondent do pay her the sums requested.

9.I refused her request also on 15 April 2014 and directed that if she should have any temporary special transportation needs, she could contact the organisation that provides taxi service for wheelchair users.

Proposed grounds of appeal

10.She now applies for leave to appeal against my decision.  Her grounds of appeal are:

“1. Important questions on points of law are involved :-

(a)whether it is just for a judge to turn complete blind eye to compelling humanity matters;

(b) whether the true wish of a deceased can be totally disregarded in making maintenance decisions; and

(c)whether important factual/legal matters can be decided on paper without a hearing.

2.     Public interest and justice require leave be granted to the Applicant.”

The applicable legal principle

11.This application for leave is made under section 14AA(1) and (4) of the High Court Ordinance, Cap 4 and O 59 r 2B of the Rules of the High Court.  Sections 14AA(1) and (4) of the Ordinance provide:

“(1) Except as provided by rules of court, no appeal lies to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted by Court of First Instance or the Court of Appeal.

(4) Leave to appeal for the purpose of subsection (1) shall not be granted unless the court hearing the application for leave is satisfied that—

(a) the appeal has a reasonable prospect of success; or

(b) there is some other reason in the interests of justice why the appeal should be heard.”

The application is made under both section 14AA(4)(a) and (b).

12.It has been explained in the case of SMSE v KL [2009] 4 HKLRD 125 at para 17 per Le Pichon, JA that “reasonable” means more than fanciful but without having to be probable.

Analyses and decisions

13.The first matter to decide is whether the application for payment is an interlocutory order within section 14AA(1) of the Ordinance and thus leave to appeal is required under section 14AA(4).  O 59 r 21(1)(a) of the Rules of the High Court provides that section 14AA(1) does not apply to “a judgment or order determining in a summary way the substantive rights of a party to an action”.  The order I made on 15 April 2014 refusing the applicant’s application for payment of extra maintenance of over HK$1,000,000 is a summary determination of her substantive rights to claim such maintenance on the ground of her mobility being impaired by injury.  I am of the view that it is an order within O 59 r 21(1)(a) and no leave is required for appeal.

14.Alternatively and if I were wrong in my decision on the nature of the order, I would still not grant leave and dismiss this application.  I do not think this application has anything to do with humanity as asserted in the first ground of appeal.  I think this is simply a matter of whether it is reasonable for the applicant to ask for a chauffeur driven specially adapted vehicle when her confinement to the wheelchair is only a temporary one.

15.Since there is an organisation which provides specially adapted taxi that can satisfy her needs, I do not think it reasonable for her to ask for funds to procure a similar facility just for her own temporary use.

16.Regarding the private nurse, the applicant wants her to assist the applicant to take medicine in a timely manner and in the use of the wheelchair.  The applicant is already having the exclusive service of a full-time live-in domestic helper.  I am of the view that the helper can also discharge the duties that the applicant wishes to be discharged by a nurse to be engaged.  Hence, I dismissed the application.

17.The applicant in her grounds of appeal also submitted that I should not ignore the true wish of Madam Mui in making maintenance decisions for her.  However, my decision should be based on what is reasonable for satisfying the needs of the applicant.  I, of course, would consider how Madam Mui would have wished to take care of her mother if she were alive.  That is one of the factors in the consideration of what is reasonable.

18.The applicant also complained that my decision was made on paper without hearing her.  However, the decision was made on paper because the application was made informally by letter.  Since it was a simple matter that could be decided on paper, I therefore did not ask the parties to fix a hearing so as to save some costs.

19.Finally, the last ground of appeal says that public interest and justice require leave to be granted.  But I fail to see what public interest or reason in the interests of justice that is involved in the application for extra maintenance or the proposed appeal.

Order

20.I therefore dismiss this application for leave.

21.I further make a costs order nisi that the applicant do pay the costs of this application to the 1st respondent.  These costs shall be assessed by me summarily.  The 1st respondent shall file and serve a bill of costs within 2 weeks setting forth the costs it seeks from the applicant.  The applicant shall within 14 days thereafter file and serve her objections to the bill, if any.  I will then proceed to assess the costs summarily on paper. 

22.Since the applicant has served this application on the 3rd and 4th respondents, I also make costs orders nisi that the applicant do pay the 3rd and 4th respondents the costs of this application and assess such costs payable by the applicant at HK$2,000 for the 3rd respondent and HK$2,250 for the 4th respondent.

The applicant appeared in person

Mr Kevin So, of Clifford Chance, for the 1st respondent

The 3rd, 4th and 5th respondents, excused from attendance