XCHRX Leung Kam Yin Joyce v. Li Oi Lun

DCMP1525/2001

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1525 OF 2001

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J U D G M E N T

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1. On 16 May 2001, Yam J. in the Court of First Instance made an order to transfer the originating summons herein to this court, and now the Plaintiff makes an application to transfer the case back to the Court of First Instance.

2. In the originating summons, the Plaintiff, who is the widow of the deceased, Lee Sai-wai, is asking the court to make an order against the Defendant to provide reasonable provision for her maintenance, as the deposition of the deceased's estate effected by his will made no provision for the maintenance of the Plaintiff. Such application is made pursuant to the provisions in the Inheritance (Provision for Family and Dependants) Ordinance, Cap. 481 ("the Ordinance").

3. Section 25(1) of the Ordinance provides that proceedings under such Ordinance shall be commenced in the District Court, and subsection (2) empowers the making of rules to enable cases to be transferred from the District Court to the Court of First Instance.

4. According to the note of proceedings of the hearing on 16 May 2001, Yam J. transferred the case to the District Court on the ground that such kind of application must be commenced in the District Court by virtue of the said section 25(1). As the learned Judge transferred the case on that basis, there is no restriction for me to transfer the case back to the Court of First Instance, perhaps, on the grounds that the District Court does not have jurisdiction to deal with the originating summons, or the Court of First Instance would be the more appropriate forum to deal with the application.

5. In the present case, the value of the deceased's assets amounts to about $5.5 million and the Plaintiff is claiming for a maintenance sum of $1.5 million.

6. In my judgment, the District Court does not have jurisdiction to deal with the originating summons herein. The monetary limits of the civil jurisdiction of the District Court have been set out in sections 32 to 37 of the District Court Ordinance, and so the court does not have jurisdiction to deal with a claim exceeding those limits. Although section 25(1) of the Ordinance provides that such kind of application shall be commenced in the District Court, it is far from saying that the District Court does have unlimited jurisdiction to deal with this sort of application. Indeed, if that was the intention of the legislature, one would have expected a provision such as section 30 of the Matrimonial Proceedings and Property Ordinance, Cap. 192, to be included in the Ordinance, which reads as follows:

"The jurisdiction conferred on the District Court by this Ordinance shall be exercisable by the District Court notwithstanding that by reason of the amount claimed in an application made under this Ordinance the jurisdiction would not but for this section be exercisable by the District Court."

7. The Lands Tribunal and the Labour Tribunal also have exclusive jurisdiction to deal with certain kinds of cases. However, in the Lands Tribunal Ordinance (Cap.17) and the Labour Tribunal Ordinance (Cap.25), there are detailed statutory provisions which define the jurisdiction of the tribunal concerned, and the wordings of the provisions leave no room for doubt that those tribunals do have exclusive jurisdiction to deal with those kinds of cases. In the absence of express provision in the Ordinance which provides that the District Court does have exclusive jurisdiction to deal with the claims under the Ordinance, I do not accept that the District Court has unlimited jurisdiction to deal with such claims. Indeed, section 25(2) of the Ordinance seems to suggest that the District Court should transfer a case to the Court of First Instance if that is necessary. In any event, because of the amount involved in the claim and that the claim may involve probate and matrimonial matters, I am of the view that the Court of First Instance would be the more appropriate forum to determine the application.

8. Based on the aforesaid, I make the order to transfer the case to the Court of First Instance.