RE WAN PO JUN MARY PAULINE

HCMP 2203/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 2203 OF 2013

(on an intended appeal from HCB No. 144 of 2011)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  This is an application by Mary Pauline Wan Po Jun (“the Bankrupt”) for leave to appeal against a decision of To J made on 26 February 2013 refusing her application for an order that the trustee in bankruptcy be removed, alternatively for an order that the trustee release to her the conduct of proceedings in HCA1478/2009, HCA1682/2010, HCA1689/2010 and HCMP1919/2010.

2.  To J handed down written reasons for his decision on 3 May 2013.  On 8 May 2013 the judge refused leave to appeal. 

3.  The rules of court state that an applicant for leave to appeal must apply to the Court of Appeal within 14 days after the judge refuses leave.  The deadline for an application to the Court of Appeal was therefore 22 May 2013.

4.  However it was not until 30 August 2013, more than 3 months later, that the Bankrupt applied to this court for leave to appeal.  No explanation has been given for this substantial delay.  In her affirmation filed on 30 August 2013, she has written “operation on the stone in the kidney (kidney stone)”.  However she has not disclosed when she had this operation, nor what was the recommended period of recuperation, nor why it had led to the delay in her prosecution of the application for leave to appeal.  The explanation for the delay is clearly unsatisfactory.

5.  Notwithstanding an applicant’s delay, this court retains a discretion to give leave if the merits of the application are substantial enough.  We therefore turn to this aspect.

6.  By way of background, the Bankrupt had lived together with Auyeung Wing Hong (“the Deceased”) for many years before his death.  By his will, he made her the executrix and trustee of his estate, but left the entire estate to his children, making no provision for her.  Subsequently she has instituted a number of proceedings.  It was her liability for costs in some of those proceedings that has led to her being adjudicated bankrupt. 

7.  On the face of it however (and this is only a preliminary, tentative view as we are not aware of the case of the Bankrupt’s opponents), her best case is HCMP1919/2010.  In these proceedings she has made an application for financial provision under the Inheritance (Provision for Family and Dependants) Ordinance (“IPFDO”). As noted in the judgment of this court (CJHC, Cheung and Yuen JJA) given on 29 March 2012 in CACV78/2011, under the IPFDO the court has power to order, amongst other things, the payment of lump sums and the transfer of property. Thus her claims for a sum of $3.5m (in HCA1478/2009) and her claim to a share in the place which she and the Deceased had made their home (in DCCJ3315/2011) could be dealt with under or together with her claim for financial provision under the IPFDO: see para. 17 of the Chief Judge’s judgment in CACV78/2011. 

8.  She has been granted legal aid in HCMP1919/2010.  This means that she has the benefit of free legal advice to prosecute those proceedings.  Therefore it would only be to her detriment as a lay person, as well as a duplication in time, effort and costs for all concerned, for her to seek to continue prosecuting HCA1478/2009 herself, without the benefit of legal advice and exposing herself to further liabilities to costs.  It is for this reason that To J refused her application to obtain conduct of those proceedings (HCA1478/2009).  We take the view that that was the correct order to make. 

9.  As for HCMP1919/2010, those proceedings are personal to the Bankrupt anyway and accordingly the trustee in bankruptcy has no interest.  There was no need for the order she sought.  Her application was therefore rightly rejected. 

10.  As for HCA1682/2010 and 1689/2010, those are proceedings against a Mr Lo Kai Kwong, a business associate of the Deceased and the Bankrupt.  Her application for legal aid was refused.  The trustee in bankruptcy and the Official Receiver took the view that it was not appropriate to proceed with those actions due to the possible costs liability.  To J examined the position in paras. 13 and 14 of his Reasons for Decision and there is nothing in the Bankrupt’s affirmation that casts doubt on the correctness of his views.

11.  For the reasons above, we are not persuaded that there are such merits in the Bankrupt’s appeal that we should exercise our discretion to give leave to appeal despite the substantial, unsatisfactorily-explained delay.  The application for leave to appeal out of time is therefore dismissed. 

12.  Pursuant to Order 59 rule 2A(8) Rules of the High Court it is ordered that no party may request this determination to be reconsidered at an oral hearing inter partes.