LN, by his next friend A, LM v. LK, The Executor to the Estate of LC, Deceased

FCMP 234/2022

[2024] HKFC 59

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 234 OF 2022

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J U D G M E N T
(Master’s Appeal on Interim Maintenance)

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1.  This is a hearing of the Applicant (“A”)’s appeal against the order of Master WY Ho of the Family Court on 6 October 2023 in which A’s summons for interim maintenance (“IM”) dated 12 May 2023 against the Respondent (“R”) was dismissed.

2.  R raised opposition to A’s present application.

3.  After hearing counsel submissions, I have decided to grant the following orders:

(1)  Leave to A to adduce further evidence as set out in the 7^th Affidavit of A, LM.

(2)  R shall pay a monthly sum HK$7,200 to A as IM on the 1^st day of every month, starting from 1 June 2023 until conclusion of the proceedings or further order of the court.

(3)  The sum of HK$14,065 being the balance of CSSA currently deposited with A’s solicitors to be released to A to satisfy part of the IM payable by R.

4.  These are my reasons.

Background

5.  A is a young male of 14 years of age. He was born outside wedlock of his mother (A, LM), now acting as his next friend (“M”) and his father LC (“the Deceased”) who passed away on 3 March 2022 at the age of 75. The Deceased had a lawful wife, with whom he had 2 children. The elder child is LK (“the Executor”), aged 44, who is also the sole executor and beneficiary of the estate of the Deceased.

6.  M came to Hong Kong as a domestic helper in about 2001. She and the Deceased met in around 2002 and shortly afterwards, they developed a romantic relationship. Around 6 years into that relationship, A was born in the year of 2010. There is no dispute that the Deceased was the father of A. Ever since the birth of A and until the demise of the Deceased in 2022, A had been under the primary care of the Deceased. M continued to work as a domestic helper and I accept that with her limited income, most if not all of A’s expenses had been paid by the Deceased.

7.  According to M, the Deceased started to have stomach discomfort in October 2021. Since December 2021, the Deceased urged her to open a bank account for A so that he could transfer assets into A’s name. There was some delay in the opening of bank account as M was only free on Sunday when the banks are closed. Eventually, they attended a branch of the Bank of China in Yuen Long in the first week of February 2022, but still no bank account could be opened because of the expiry of A’s HKID card.

8.  The Deceased was admitted into hospital shortly afterwards. As M could not take care of A (since she was required to live-in with her employer), A was arranged to stay at a friend’s residence in Stanley for a short period of time. The Deceased passed away on 3 March 2022 and M needed to seek help from the Social Welfare Department (“SWD”). Since 27 July 2022, A was arranged to stay in an institution, the Care Home in Chai Wan (“the Care Home”), in which A lives in a dormitory with 10 other boys. CSSA was also paid by the SWD to cover A’s daily and other expenses at the Care Home.

9.  There is no dispute that by a will dated 31 January 2013, the Deceased bequeathed all his real and personal properties to the Executor. There was no financial provision made therein for the support of A. As a result, an Originating Summons was issued on 29 December 2022 under the Inheritance (Provision for Family and Dependants) Ordinance, Cap. 481 (“Cap. 481”) claiming for reasonable financial provision to be made out of the estate of the Deceased to A. During the course of proceedings, requests were made resulting in the Executor agreeing and undertaking in his personal capacity to advance on behalf of the estate a monthly sum of HK$2,495 and half of A’s immediate psychological treatment costs for A’s benefit pending trial, on the basis that the Executor shall be reimbursed from the estate and the payments shall be set off against the final award in these proceedings. In view of such payments, A was no longer eligible for CSSA which was subsequently stopped.

10.  After A’s admission into the Care Home which was situated in Chai Wan, A had to give up his Form 1 candidacy at S College (“S College”) at Hung Shui Kiu, N.T., which was a secondary school of his choice. Instead, he was enrolled to L School (“L School”) near to the Care Home which had a lower academic standard than S College. A was not happy with this arrangement. His need for extra tuition (in Math and Chinese) were not met. Moreover, A also experienced a number of mental issues including a phobia for trains (he was unable to take MTR), frequent mood swings and had sleeping difficulties. He was said to have fair relationship with other residents, but could not make close friends amongst them. He was reserved at school and spent most of his free time playing on his phone, such that the supervisor of the Care Home had to limit his phone use. He said he was lonely and did not know how to deal with his feelings and emotions. Based on all these, M believed that he needed professional help regarding his mental issues.

11.  At one time, M believed that enrolling A into a boarding school would be the appropriate arrangement for A. Three choices of boarding school were considered, namely Diocesan Boys’ School (“DBS”), St. Paul’s Co-educational College (“SPCC”) or St. Stephen’s College (“SSC”). The costs of such arrangement was first estimated at HK$22,458 per month (A/107-108), but later revised to HK$13,138-HK$24,538, depending on whether A could get into boarding schools or having school fees remission (A/144-145).

12.  On 12 May 2023, a summons for IM (A/24-25) was issued by A through his solicitors asking for essentially a monthly sum of HK$15,438 plus school fees to be paid out of the estate. M filed her 3^rd Affidavit (A/156-168) in support of such claim of IM.

13.  The said application came before Master WY Ho for argument on 5 October 2023, who delivered her oral reasons for decision on 6 October 2023. For various reasons as reflected in her oral decision, the learned Master was not satisfied that A was in immediate need of financial assistance and so his application for IM was dismissed, with no order as to costs.

14.  A Notice of Appeal to Judge in Chambers was issued on 20 October 2023 asking for the same interim relief, namely:

“1. The Applicant be granted reasonable interim maintenance in the sum of HK$15,438 per month plus school fees to be made out of the estate of the Deceased pursuant to section 7 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481), payable on the 1^st day of every calendar month;

…”

15.  But on 11 December 2023 (i.e. 3 days before the appeal return date of 14 December 2023), A issued another summons asking for leave to adduce further evidence as set out in M’s 7^th Affidavit (C/79-106). Although it was not expressly stated therein, it seems that M’s proposals for boarding schools were no longer pursued. She reported that subsequent to last hearing, a clinical psychologist has been assigned by the SWD to provide counselling and/or therapy to A. Extra tuitions on Chinese, Chinese History and Math were arranged. As far as the extra-curricular activities (“ECA”) of swimming and piano lessons are concerned, they were stopped after the subsidies from the Strive and Rise Programme ran out but it was her intention to restart those programmes after obtaining IM from the estate. She now proposes that (C/88):

“36. Based on the above, I therefore believe that it will be in [A]’s best interest to move out of [the Care Home], move into a private housing apartment, and be provided with constant care and supervision by way of employing a foreign domestic helper who, preferably, possesses the experience and education qualifications to assist [A] in most of his subjects and in tutoring him when necessary…”

16.  M said that the proposals on private accommodation and employing a domestic helper as A’s carer were not feasible previously because of her own domestic helper status. But since the hearing on 6 October 2023, her present solicitor, Mr. Alfred Ip of Messrs Hugill & Ip has kindly agreed to sign a lease and employ a domestic helper for A’s benefit, if funds are available from the estate.

17.  She now claims for the IM to be set at HK$34,708 per month, including:

Part 1. Current Expenses

Care Home residential fees (including food)	HK$1,500
Extra tuition fees	HK$2,720
ECA	HK$2,500
School books and stationery	HK$125
Medical / Dental	HK$75
Clinical Psychologist	By Public Funds
Entertainment/presents	HK$100
Holiday	HK$200
Clothing/shoes	HK$50
Lunches and pocket money	HK$1,200
Transportation	HK$250
Uniform	HK$250
Meals out of home	HK$600
Mobile phone data plan	HK$138
Sub-total:	HK$9,708

Part 2. Anticipated future expenses (in place of Care Home)

Rental (2-bedroom apartment)	HK$15,000
Foreign Domestic Helper (including food allowance)	HK$6,000
Food	HK$2,000
Utilities and Management Fees	HK$3,500
Sub-total:	HK$26,500

Grand total: HK$34,708 (after deducting HK$1,500 Care Home fees)

Legal Principles on Master’s Appeal

18.  Appeal from decisions of a Master to a judge in chambers is as of right under s.63 (1A) of the District Court Ordinance, Cap.336:

“63…

(1A) Subject to subsection (1B), an appeal lies as of right to a judge in chambers from a judgment, order or decision of a master in any civil cause or matter.

…”

19.  When the appeal comes before the judge in chambers, it is to be dealt with by way of actual rehearing of the application and the judge treats the matter as though it came before him for the first time: Hong Kong Civil Procedure 2024 §58/1/2.

20.  By reference to O.58 r. 1(5) of the Rules of District Court, Cap. 336H (“RDC”), other than evidence as to matters which have occurred after the date of the order, parties are not allowed to lodge further evidence except on special grounds:

“O.58 r.1

…

(5)  No further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal under this rule except on special grounds.”

21.  In considering whether to admit further evidence, the court will consider the conditions laid down in Ladd v. Marshall [1954] 1 W.L.R. 1489, namely:

(1)  that the evidence could not have been obtained with reasonable diligence for use at the hearing below;

(2)  the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

(3)  the evidence must be such as is presumably to be believed.

A’s application to adduce further evidence

22.  I shall deal with A’s application to adduce further evidence first.

23.  Miss Vivien Leung for R raised objections to A’s application to adduce further evidence, which was only issued on 11 December 2023, just a few days before the appeal hearing. Whilst recognising that the present proceedings are concerned with the welfare of a minor, Miss Leung submitted that M failed to give a full account of the lateness and therefore, the application for adducing new evidence should be rejected.

24.  In my judgment, the fact that the application for adducing new evidence was only made days before the hearing was indeed unsatisfactory. However, the facts of A’s non-admission into a boarding school and the subsequent agreement by his solicitor to sign a lease and employment contract with domestic helper on his behalf could arguably be regarded as evidence only available after the hearing before the Master. Moreover, I have to remind myself that we are now dealing with the welfare of a minor. It is well recognised that in dealing with appeals involving the welfare of minor children, the court will admit fresh evidence even if it does not satisfy the Ladd v. Marshall test if the welfare of the minor requires it: Hong Kong Civil Procedure 2024 §59/10/12. As far as the present case is concerned, I am satisfied that O.58 r.1 of RDC and the Ladd v. Marshall test have been satisfied, but even if not, the welfare of A could still be regarded as exceptional circumstances for the new evidence to be adduced.

25.  A’s summons dated 11 December 2023 for adducing new evidence is granted and I will proceed to consider his application for IM by reference to the 7^th Affidavit of M as well.

A’s IM summons

26.  What is in issue before me is paragraph 1 of A’s IM summons (which was repeated in his Notice of Appeal) in which he asked for:

“1. The Applicant be granted reasonable interim maintenance in the sum of HK$15,438 per month plus school fees to be made out of the state of the Deceased pursuant to section 7 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap.481), payable on the 1^st day of every calendar month.”

27.  However, judging from the submissions of Mr. Shaphan Marwah, A is now inviting the court to make an IM order in the sum of HK$34,708 per month. It has to be noted that despite the new evidence as adduced in M’s 7^th Affidavit, there was no application to amend the IM summons or the Notice of Appeal for the IM claim to be increased. The first time R was made aware that there might be an increase in the quantum of IM to be claimed was when A’s letter (by his solicitors) to the court enclosing A’s intended summons to adduce new evidence was copied to R’s solicitors on 7 December 2023, which was only 7 days before the hearing. It would not be fair to allow A to make an IM claim at HK$34,708 at this late stage and without any proper application. Therefore, this court will only consider A’s original IM claim at HK$15,438 per month plus school fees.

The Law

28.  The application for IM is based on section 7(1) of Cap. 481:

“(1) Where on an application for an order under section 4 it appears to the court -

(a) that the applicant is in immediate need of financial assistance, but it is not yet possible to determine what order (if any) should be made under that section; and
(b) that property forming part of the net estate of the deceased is or can be made available to meet the need of the applicant,

the court may order that, subject to such conditions or restrictions, if any, as the court may impose and to any further order of the court, there shall be paid to the applicant out of the net estate of the deceased such sum or sums and (if more than one) at such intervals as the court thinks reasonable; and the court may order that, subject to this Ordinance, such payments are to be made until such date as the court may specify, not being later than the date on which the court either makes an order under section 4 or decides not to exercise its powers under that section.

…“ (underline added)

29.  In the sub-section, there are 2 pre-requisites for an IM application, namely that the applicant must be in immediate need of financial assistance, and that the estate is in a position to meet such needs of the applicant. Only with satisfaction of these 2 pre-requisites, then the court would consider whether to exercise its discretion in granting such an IM order in view of all the circumstances of the case. Therefore, it is a 3-stage test, namely:

(1)  Whether the applicant has any immediate financial needs.

(2)  If yes, whether the estate is in a position to meet those needs.

(3)  If yes again, then the court would consider whether to exercise its discretion in granting such an IM order in view of all the circumstances of the case.

Discussion

Immediate financial needs

30.  In the case of ACLS v. HSB (T) L[1], Lam JA (as Lam PJ then was) has given a discussion on the definition of “immediate financial needs” and towards the end of §40 of the judgment, His Lordship concluded that:

“40….In our view, “immediate need” means something which calls for immediate attention. We do not think it is desirable to put any further gloss on this expression.”

31.  The controversial issue here is whether A could satisfy the court that he has such immediate need for financial assistance.

32.  The status quo is that A has been residing at the Care Home during the past 20 months, and according to M’s 7^th Affidavit, at a current monthly budget of HK$9,708 (C/90). But it is also her case that A should be removed from the Care Home and to be housed in a private apartment and so there would be anticipated future expenses of HK$26,500 per month.

Anticipated future expenses of HK$26,500

33.  I shall discuss the anticipated future expenses first and they are repeated hereunder:

Anticipated future expenses (in place of Care Home)

Rental (2-bedroom apartment)	HK$15,000
Foreign Domestic Helper (including food allowance)	HK$6,000
Food	HK$2,000
Utilities and Management Fees	HK$3,500
Total:	HK$26,500

34.  M’s explanation on the need for A’s private accommodation and the employment of a domestic worker is as follows (§§34-36 of M’s 7^th Affidavit, C/87-88):

(1)  The Care Home is situated in Chai Wan and with M’s employment at Tseng Kwan O, it is impossible for her to visit A on the weekdays before the Care Home’s curfew kicks in at 9:30pm.

(2)  The Care Home also has a designated time for A to use his mobile phone and due to A’s need to use his phone for personal time as well, she does not think that there can be quality supervision for A over the phone.

(3)  With private accommodation, the above limitation due to curfew and restrictive phone usage could be solved because visitation time could be tailored made to suit both of their schedules. She could also arrange extra tuition and ECA for A, or allow A to hang out with his friends on Saturdays.

(4)  The domestic helper could provide undivided care and supervision to A.

(5)  There will be less of a language barrier between M and the domestic helper.

My views

35.  In considering whether A has immediate financial needs on private accommodation and the employment of a domestic helper, it is necessary to assess M’s proposals by reference to their reasonableness and practicability.

36.  It has to be noted that A is an adolescent at the age of 14. Due to the employment status of M, she is not in a position to take personal care of him. But her proposals on renting an apartment and employing a foreign domestic helper are rather uncertain despite the fact that her solicitor is said to be willing to sign a lease and the employment contract on her or A’s behalf. On the choice of apartments, apart from advertisements of some rental apartment available in the Chai Wan area (C/101), there is no evidence on any inspection being carried out to see if they are suitable for A to live in.

37.  Equally, there is no evidence on the details of the domestic helper to be employed. I suppose that the domestic helper would be from the Philippines, as M is looking for someone who could communicate with her better. I am a bit doubtful whether it is appropriate for a Filipina domestic helper (I take judicial notice that usually domestic helpers in Hong Kong are of the female gender) to live in an apartment together with A, and who is also supposed to take care of and supervise A as well. Providing physical care may be the easier part, but how could one expect a newly employed domestic helper, who is a complete stranger and might not even speak the Punti dialect, to provide effective supervision to a young male of 14 and who is a person akin to her employer? There is in fact evidence to suggest that A might be indulging too much time on using his mobile phone resulting in some restrictions on phone use being imposed by the Care Home. A newly employed domestic helper is simply not in a position to supervise or regulate A on his excessive use of mobile phone or other activities as compared to the supervision and discipline to be provided by the Care Home.

38.  The psychological well-being of A is also a concern. There is suggestion of A suffering from some form of emotional distress due to the passing of his father (i.e. the Deceased) and the resulting upheaval of the life that he used to enjoy. That is why M suggested the intervention of a clinical psychologist. In my view, the Care Home is a much safer place for A to live in with professional social workers or supervisors being available to provide suitable and timely assistance in case of A’s emotional distress.

39.  The practicality of M’s suggestions also needs to be addressed. She is suggesting to find someone preferably with the experience and education qualifications to assist and tutor A, who is said to need assistance in subjects like Chinese, Chinese History and Mathematics. Is it realistic to find a Filipina domestic helper who possesses such experience and education qualifications, and who is willing to provide tutoring service to a secondary school student at a domestic helper’s salary? I do not think that is a realistic option at all.

40.  Lastly, it is about timing. Even if the court is with A on private accommodation and employment of domestic helper, we all know that it will take time for these arrangements to be put in place. The private apartment may take 2-3 months for it to be ready but the employment of a domestic helper might take even longer. We have to remind ourselves that we are not talking about finding an ordinary Filipina domestic helper, but one with experience and education qualifications to care for, supervise and tutor a 14-year old. I note that A’s application for IM was taken out in May 2023, which was almost 11 months ago. If A, or more precisely his legal representatives have chosen to proceed with the application for financial provision under section 4 of Cap.481 in a more timely manner, I am quite sure that we must have already been allocated a final hearing date by the time of this judgment, instead of still arguing on whether IM should be granted.

41.  All in all, I am not satisfied that the proposals as put forward by M on private accommodation and employment of domestic helper are reasonable or practical in all the circumstances of this case and therefore, they could not be regarded as the immediate financial needs of A.

Other immediate financial needs

42.  Taking away the items on private accommodation and employment of domestic helper, there are still other items to be considered, namely:

Care Home residential fees (including food)	HK$1,500
Extra tuition fees	HK$2,720
ECA	HK$2,500
School books and stationery	HK$125
Medical / Dental	HK$75
Clinical Psychologist	By Public Funds

Entertainment/presents	HK$100
Holiday	HK$200
Clothing/shoes	HK$50
Lunches and pocket money	HK$1,200
Transportation	HK$250
Uniform	HK$250
Meals out of home	HK$600
Mobile phone data plan	HK$138
Total:	HK$9,708

43.  In Miss Leung’s submissions, the objections to A’s present expenses were contained in §45 therein, and therefore, I shall limit my discussion on those disputed items only:

	R’ case	A’s claim
Extra tuition fees	Nil	HK$2,720
Meals out of home	HK$200	HK$600
Holidays	Nil	HK$200
Mobile phone data plan	Nil	HK$138
School lunches and pocket money	HK$420	HK$1,200

44.  For extra tuitions, Miss Leung objected on the ground that A did not have such expenses before the Deceased’s death. So there is no “immediate” need to introduce such expenses now.

45.  For my part, I accept that A had been under the care of the Deceased since birth, and the Deceased did also tutor A on his studies. I also accept that A did perform well in his primary studies but not now, and both he and the Deceased did have high hope on his future academic achievement. The unfortunate fact now is that the Deceased could no longer guide or assist A in his studies, and therefore, some extra tuitions to be given to A is also reasonable and necessary. These extra tuitions could not wait or else there would be further deterioration of A’s academic performance. I accept A’s immediate financial needs include extra tuitions at HK$2,720.

46.  I see no submissions from Miss Leung on the item of meals out of home (HK$600 vs. HK$200) and mobile data plan (HK$138). In any event, I do not regard a claim of HK$600 per month on food and HK$138 per month on mobile phone plan in respect of a 14-year old boy is unreasonable.

47.  Miss Leung submitted that for the items of holidays, lunches and pocket money, M has failed to explain why there was such an increase from her previous estimate. She objected to the new item of holidays (HK$200), and increase from HK$400 to HK$1,200 in respect of school lunches and pocket money. These are relatively small amounts and I accept them as representing A’s immediate financial needs.

48.  Overall speaking, I am satisfied that A has immediate financial needs of HK$9,708 per month, subject to the deduction of HK$1,500 as discussed in §56 below.

M’s ability to contribute

49.  The next issue is M’s ability to contribute towards A’s immediate financial needs.

50.  I was referred by Miss Leung to the Form E of M (A/207) in which she stated her monthly income was HK$5,926 (with monthly salary at HK$4,730 and food allowance at HK$1,196). At the same time, she also set out her various monthly expenses at HK$10,283 (A/209-210) including:

Personal

Meals out of home	HK$400
Transport	HK$200
Clothing/shoes	HK$50
Personal grooming	HK$50
Entertainment/presents	HK$200
Dependent members (her other elder son)	HK$1,200
Monthly loan repayment	HK$5,275
Sub-total:	HK$7,375

Children (A)

School books and stationery	HK$125
Medical/dental	HK$75
Entertainment/presents	HK$100
Holidays	HK$200
Clothing/shoes	HK$50
Lunches and pocket money	HK$1,200
Other transport	HK$250
Uniform	HK$250
Meals out of home	HK$600
Mobile phone data plan	HK$138
Sub-total:	HK2,908
Grand Total (Personal and Children):	HK$10,283

51.  According to Miss Leung, M’s monthly loan repayment was due to a loan of HK$31,650 (A/205) which she took out for repairing her elder son’s house in the Philippines. The elder son has now got an employment in Macau and therefore, he should be responsible for the repayment and not to rely on M’s financial assistance any further. This will free up sufficient resources to meet A’s immediate financial needs.

52.  There may be a point in Miss Leung’s submissions, but in my view, we have to look at the overall picture, including the following facts:

(1)  The Deceased had all along financed most, if not all of his son A’s expenses since birth for at least 12 years.

(2)  According to M, the Deceased had the intention to open and transfer money into a bank account for A after the deterioration of his health, which did not materialize only because of the expiry of A’s HKID card. I accept that this amounts to at least some evidence on the Deceased’s intention to make financial provision towards the maintenance of A after his death, albeit not by way of a testamentary gift in the will.

(3)  There is no dispute that the net value of the estate is HK$9,196,617.03 (A/34). Although a large part of the estate is in the form of landed properties (HK$8,604,600), the more liquid assets being in the forms of cash and stocks still amount to HK$845,531.50, and I am satisfied that they could be utilised to meet the immediate financial needs of A, if any.

(4)  On the contrary, M is working as a domestic helper with a relatively low income. She is having a very tight budget on her income and expenses and is forced to live a rather frugal life herself. For example, M is spending very little money on herself (HK$900 per month only) in order to spare money to support her elder son and A. It would not be unreasonable for her to retain a little more financial resources for her own use, if an order on IM is made against the estate.

(5)  As the remaining sole guardian and caring parent of A, M has to take up more parental responsibilities as compared with the days when the Deceased was the main carer. It is more likely than not that M has to incur additional expense than just the bare minimum that she is currently spending on A. For example, it would not be unreasonable for M to arrange more activities or outings for A during weekends and holidays, which would be beneficial to A’s overall physical and emotional development.

53.  I am not convinced that all the resources saved from M’s expenses on the elder son are enough or should be entirely diverted to be used on A. Bearing in mind that the monthly salary of M is only HK$4,730 (the food allowance at HK$1,196 is paid for a specific purpose and should not be counted as an available resource for A’s maintenance), I am minded to order M to contribute HK$1,000 per month towards the IM of A.

54.  Miss Leung also submitted that M has a plot of land in the Philippines with a value of HK$69,785.07. Apart from its relative small value, I do not think it could be sold or liquidated within a short period of time.

55.  As to Miss Leung’s submission that another source of finance that could be utilized is CSSA. I am not convinced that A should resort to public assistance if financial provision could be ordered from the estate. On the other hand, I am aware that from the previous CSSA, there is still some money left and deposited with A’s solicitors, which is a sum of about HK$14,065 (§7, C/109). I agree that sums should be used to satisfy A’s immediate financial needs.

56.  There is also another sum of HK$25,160 being left in the DSWI account as at 11 September 2023 for the payment of the Care Home fees at HK$1,500 per month. According to M, there should be around HK$20,000 left in the DSWI account by December 2023 (§8, C/109). Since the Care Home fee is covered by the DSWI account, a monthly sum of HK$1,500 should be deducted from the immediate financial needs of HK$9,708 as determined at §48 above. Therefore, the net immediate financial needs of A is reduced to HK$8,208 per month (HK$9,708 – HK$1,500 = HK$8,208).

57.  Another complaint of Miss Leung is that whilst M is claiming impecuniosity, she was able to engage counsel in all these proceedings and one may legitimately wonder on the source of funds in settling her legal fees. Mr. Shaphan Marwah explained that A’s solicitors would not be charging A for his legal fees and would only look to the other side for legal costs in the event of a favourable costs order. He submitted that such a practice is allowed according to the case of Winnie Lo v. HKSAR[2]. I note that at Note (5) of the case’s summary, it was reported that:

“(5) It was not maintenance or champerty for a solicitor to agree to act in litigation without charge or for a reduced amount in any event or whether the solicitor agrees to look to a hoped-for favourable costs order against the other side to recover his ordinary costs and disbursements. This applied equally to cases where the solicitor took the burden of paying the client’s disbursements in the hope of recovering them from the other side, subject to the cause of action or defence being reasonable and the absence of champerty. Mere knowledge of the client’s participation in a champertous agreement did not taint the solicitor provided that he kept within his proper professional domain (Wild v Simpson [1919] 2 KB 544, Clyde v New South Wales Bar Association 9(196) 104 CLR 186, Re Trepca Mines Ltd (No 2) [1963] Ch 199, R (Factortame Ltd) v Secretary of State for Transport, Local Government and the Region (no 8) [2003] QB 381, Sibthorpe v Southwark London Borough Council [2011] 1 WLR 2111 considered). (See para. 100-110.)”

58.  I am satisfied that there is nothing wrong for A’s solicitors not to charge A but only look to the other side in the event of a favourable costs order.

Is the estate in a position to meet A’s immediate financial needs?

59.  On this issue, I would repeat what I said at paragraph 52(3) above. The net value of the estate is HK$9,196,617.03 (A/34) with liquid assets being in the forms of cash and stocks amounting to HK$845,531.50. I am satisfied that the estate is in a position to meet A’s immediate financial needs, if ordered.

Should the court exercise its discretion in granting IM for A?

60.  I was reminded by Miss Leung that unlike in a divorce situation, the court must act cautiously, rather than on a broad brush approach, in an IM application under Cap.481. Such need of caution was explained by Lam JA (as Lam PJ then was) in ACLS v. HSB(T)L (supra), at §39:

“39. It follows from the above analysis of the statutory scheme that interim maintenance should only be granted (at a stage where the actual entitlement of a claimant has yet to be established) in a very clear case where the immediate need of financial assistance is shown. Since there is no obligation on the part of a claimant to repay (subject to conditions to such effect being imposed and the resources of the claimant to meet such conditions, there is a real risk that the beneficiaries of the estate may suffer a detriment if at the end of the day the Court held at the trial that such claimant was not entitled to any relief. As mentioned, there are many factors at play in an application under the Ordinance, an important one being fairness amongst all the beneficiaries of the estate. Thus, the Court cannot look at the matter merely from the angle of the reasonable need of a claimant and the resources available in the estate. In this respect, the position under the Ordinance is very different from a case for interim maintenance in the matrimonial context, especially when the claimant is not a spouse or former spouse of the deceased.”

61.  Despite the said reminder for caution, I am of the view that this is a clear case for this court to exercise its discretion in granting an IM order in favour of A, and the only issue is how much.

62.  First of all, R is currently paying a monthly sum of HK$2,495 towards the needs of A and there is no suggestion that such payment should stop. In other words, the liability to pay IM is admitted, so to speak, and the remaining issue is just quantum.

63.  Moreover, I have to remind myself that we are now dealing with the welfare of a minor, who has lost the care and long term financial support of his father. His whole life was turned upside down due to no fault of his. He was required to stay in an institution as compared to a normal home which he used to enjoy during the lifetime of his father. Therefore, it is important that a reasonable IM order should be put in place so as to minimise the adverse impact on A due to the death of and the cessation of financial support from the Deceased.

64.  As to quantum, I have already ruled in §56 above that the net immediate financial needs of A amount to HK$8,208 per month, and it is reasonable for M to contribute HK$1,000 towards that sum. Bearing in mind of the size of the estate, I am minded to order the estate to pay HK$7,200 per month as IM for A.

Conclusion and Order

65.  Based on the above discussion, I hereby grant the following orders:

(1)  Leave to A to adduce further evidence as set out in the 7^th Affidavit of A, LM.

(2)  R shall pay a monthly sum HK$7,200 to A as IM on the 1^st day of every month, starting from 1 June 2023 until conclusion of the proceedings or further order of the court.

(3)  The sum of HK$14,065 being the balance of CSSA currently deposited with A’s solicitors to be released to A to satisfy part of the IM payable by R.

Costs

66.  Costs to follow event. A has to come to court before getting the IM orders and therefore, should also get the costs of this appeal and below, including the summons on adducing new evidence and all other costs reserved, if any, with certificate for one counsel. This will be in the form of an order nisi to be made absolute after the expiry of 14 days from the handing down of this judgment. Within 14 days from the costs order being made absolute, A shall lodge and serve a 2-page (A4 paper) statement of costs for summary assessment and R to lodge and serve his list of objections (if any) also limited to 2 pages of A4 paper within 14 days thereafter. Upon receipt of these documents, the court will proceed to assess the costs on a summary basis.

Representation: