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CACV 418/2020, [2024] HKCA 27
On Appeal From [2022] HKCFI 1243
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 418 OF 2020
(ON APPEAL FROM HCAP NO. 28 OF 2019)
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IN THE ESTATE of LUI
KWAN CHEUNG (雷 均 祥)
late of Flat B2, 22/F,
Block B, Cambridge Court,
84 Waterloo Road, Kowloon,
Hong Kong, Deceased
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BETWEEN
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LUI MING LOK (雷明樂) |
Plaintiff |
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and |
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NG IM FONG LORETTA (伍艷芳),
the executrix of the estate of
LUI KWAN CHEUNG (雷均祥),
Deceased under the Grant of Probate
No. HCAG016896/2015 |
Defendant |
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| Before : |
Hon Kwan VP, Cheung and Chow JJA in Court |
| Date of Decision : |
8 January 2024 |
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DECISION
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Hon Cheung JA (giving the Decision of the Court) :
I. Introduction
1. This Court (Cheung, Yuen and Chow JJA) handed down a judgment on 14 July 2023 ([2023] 4 HKLRD 37; [2023] HKCA 865) (the ‘CA Judgment’), dismissing the appeal of the plaintiff and upholding the judgment of Coleman J (the Judge) in [2020] HKCFI 1243 (the ‘CFI Judgment’).
2. By a notice of motion filed on 11 August 2023, (the ‘Notice of Motion’), the plaintiff applies for leave to appeal against our judgment to the Court of Final Appeal on the great general or public importance limb in respect of the following two questions. The defendant opposes his application.
1) Question 1
3. Whether, in light of the legal and legislative history and on proper construction, section 20(1)(b) of the Matrimonial Causes Ordinance (Cap. 179) (‘MCO’) preserves the common law rule (the ‘Common Law Rule’) that a marriage is void where one of the parties lacked the mental capacity to understand the nature of marriage at the time of its celebration.
2) Question 2
4. Whether the grounds in section 20 of MCO apply only on a petition for nullity by one spouse against another such that they are inapplicable in a case where the validity of a marriage was challenged under the Common Law Rule in the course of a civil dispute involving a third party.
II. Conclusion
5. We are satisfied that the two questions involve questions of great general or public importance and accordingly we will grant leave to the plaintiff.
III. Costs
6. Costs of the application be in the cause of the appeal to be taxed if not agreed.
(Susan Kwan)
Vice-President
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(Peter Cheung)
Justice of Appeal
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(Anderson Chow)
Justice of Appeal
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Mr. Anson Wong SC and Mr. Billy N P Ma, instructed by Chiu, Szeto & Cheng, for the plaintiff
Mr. Au Lut Chi and Mr. Griffith Cheng, instructed by Francis Kong & Co., for the defendant
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