TSAO CHI CHING v. TSAO LUNG MAY

CACV132/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 132 OF 2013

(ON APPEAL FROM HCCA NO. 2054 OF 2012)

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DECISION
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Hon Chu JA (giving the decision of the Court of Appeal):

1.  On 3 February 2015 we handed down our judgment dismissing the appeal of Madam Tsao (“the respondent”) against Deputy High Court Judge Marlene Ng’s decision refusing leave to her to appeal out of time against Master Levy’s judgment whereby letters of administration of the estate of Tsao Chin Tsai (“the Deceased”) was granted to Mr Tsao (“the applicant’).

2.  By a Notice of Motion filed on 25 February 2015, which was amended on 26 February 2015, the respondent applied for leave to appeal to the Court of Final Appeal against our judgment.

3.  On 26 February 2015, the respondent filed an affirmation in which she repeated the matters that she had stated in affirmations and submissions made in the court below and at the appeal hearing before this court. On 16 March and 1 April 2015, two affirmations made respectively by Tsao Alan Lung Hoi and Tsao Lung Cheung were filed in support of the applicant.

4.  We are not prepared to have regard to the contents of these affirmations. The application for leave to appeal to the Court of Final Appeal is not a rehearing and parties are not at liberty to put in new affidavit evidence. We will determine the application on the basis of the evidence that the parties had already placed in the proceedings and their submissions in respect of the application.

5.  Under section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484, the Court of Appeal may give leave to appeal to the Court of Final Appeal in respect of a civil judgment where it considers the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision. 

6.  The respondent has not set out in the Amended Notice of Motion any question of law to be determined by the Court of Final Appeal. The respondent merely reiterated her arguments that the applicant did not have any evidence from the Deceased to show he was entitled to apply for letters of administration and that the applicant had already received from the Deceased cash payment that represented his share of the estate.

7.  The respondent has failed to demonstrate that her intended appeal to the Court of Final Appeal involves any question of law of great general or public importance. There are also no circumstances indicating that the case ought to be submitted to the Court of Final Appeal for decision.    

8.  The respondent has not met the threshold for obtaining leave to appeal to the Court of Appeal. We therefore dismiss the Amended Notice of Motion.

9.  By an affirmation filed on 2 April 2015, the respondent applied for a stay of this court’s decision on costs handed down on 2 April 2015 pending her appeal to the Court of Final Appeal. Since we refuse leave to appeal, the application for stay also fails.   

10.  Applying the normal rule of costs follow event, we also make an order that the respondent pays the applicant the costs of the application for leave to appeal.

11.  The applicant has put in a bill of costs. Some of the items, which relate to another action (HCAL 26/2015) and the costs of dealing with and reviewing the costs of appeal, fall outside the scope of the present application for leave to appeal and have to be disallowed. Adopting a broad-brush approach, we summarily assessed the applicant’s costs of the application to be paid by the respondent at HK$ 2,000.