Chung Yi Yuen v. Lau Koon Shing and Another

CACV 46/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 46 OF 1999

(ON APPEAL FROM HCPI 516/1997)

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J U D G M E N T

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Godfrey, J.A. :

1. Under section 22 of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, an appeal lies to the Court of Final Appeal in any civil court or matter at the discretion of the Court of Appeal or the Court of Final Appeal, in any case in which, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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 : see section 22(1)(b).

2. In this case, Miss Audrey Eu, S.C., for the plaintiff in the proceedings below, submits that there is a question involved in the case which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

3. I am of the opinion, speaking for myself, that there is a question of great general or public importance here. The question involves the practice of the court and of the legal profession in personal injuries cases in which the victim of the accident has unhappily died and it is sought to institute proceedings on behalf of his estate at a time when no grant of representation to that estate has been issued. The question may be framed as follows :-

"Whether a person who claims to be intending to apply for a grant of letters of administration to the estate of a deceased person is entitled to institute proceedings in his own name, but in the capacity of 'intended administrator' of the estate of the deceased person, for the benefit of the estate of the deceased person, and to carry on those proceedings down to judgment, being a judgment which will bind the estate of the deceased person."

4. This question involves consideration of the provisions of section 55A of the High Court Ordinance, Cap. 4 and of the provisions of Order 15 rule 6A of the Rules of the High Court, made pursuant to section 54 of that Ordinance. No useful purpose would be served by elaborating upon those matters in this judgment.

5. But we are told that in the present case, in which the proceedings below were instituted and are being maintained purportedly on behalf of the estate of the deceased person by one who has not yet obtained a grant of representation, that that person has, in fact, now applied for such a grant, and that his solicitors are satisfied that they have answered all requisitions of the Probate Registry which, if unanswered, might have presented an impediment to the making of such a grant. It follows that such a grant may be made in the near future, and perhaps before the case is listed for hearing in the Court of Final Appeal.

6. In order to meet that possibility, Miss Eu has offered to undertake, on behalf of the plaintiff's solicitors, within 24 hours of being themselves notified of the making of a grant of representation in favour of the plaintiff, to notify the defendants' solicitors accordingly. That would enable the defendants to take such course as they might then be advised to take in relation to the hearing of the appeal to the Court of Final Appeal.

7. I would, for my part, accept that undertaking and, on that footing, make the order for which the plaintiff now asks, i.e., an order under section 22(1)(b) of the Hong Kong Final Appeal Ordinance which indicates that, in the opinion of this court, 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.

Rogers, J.A. :

8. There are two claims in this case. One is under the Fatal Accidents Ordinance and the other is under the Law Amendment and Reform Consolidation Ordinance.

9. The plaintiff makes no claim himself for dependency under the Fatal Accidents Ordinance. He is the recipient of legal aid, but it is feared that those who could claim a dependency under the Fatal Accidents Ordinance might not be able to receive legal aid. That aside, the question remains as to the cause action under the Law Amendment and Reform (Consolidation) Ordinance which survives the death of the deceased.

10. In my view, the question which might arise in this case could be phrased in this way :-

"Whether Order 15 rule 6A(3) should be interpreted as being made under and so as to give effect to section 55A(c) of the High Court Ordinance as well as under section 55A(b) so as to enable a person to proceed to obtain judgment for the benefit of the deceased's estate without obtaining Letters of Administration once he has obtained an order under Order 15 rule 6A(4)(a) to act as a Plaintiff."

11. I have doubts as to whether, in the end, this action itself merits proceedings to the Court of Final Appeal since by the time it reaches there, I have no doubt that Letters of Administration will be granted, but, as the matter stands today, I would agree that the matter is of great general or public importance.

12. I would concur in the order which Godfrey, J.A. has read out.