CACV 200/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 200 OF 2008 (ON APPEAL FROM HCAP NO. 2 OF 2004) ____________ IN THE ESTATE OF MUI YIM FONG, deceased. ____________ BETWEEN TAM MEI KAM Plaintiff and HSBC INTERNATIONAL TRUSTEE 1st Defendant LIMITED (in the capacity as the sole executor and trustee named in the Purported Will of the Deceased dated 3rd December 2003) HSBC INTERNATIONAL TRUSTEE 2nd Defendant LIMITED (in the capacity as the Trustee of the Karen Trust, which is the sole devisee named in the Purported Will of the Deceased dated 3rd December 2003) NEW HORIZON BUDDHIST ASSOCIATION 3rd Defendant LIMITED LAU KAI EDDIE 4th Defendant ____________ Before: Hon Tang Ag CJHC, Yeung JA and Yuen JA in Court Date of Hearing: 19 August 2010 Date of Judgment: 7 October 2010 _______________ JUDGMENT _______________ Hon Tang Ag CJHC: 1. I have had the advantage of reading Yuen JA’s judgment in draft. With respect, I agree with it and have nothing to add. Hon. Yeung JA: 2. I agree with the judgment of Yuen JA and have nothing to add. Hon. Yuen JA: 3. In HCAP No.2 of 2004, the Plaintiff Madam Tam Mei Kam, the mother of the deceased, sought the following declarations, that: (1) the court pronounce against the validity of a Will in which the deceased appointed HSBC International Trustee Ltd her executor and trustee and bequeathed her entire estate to the Karen Trust; (2) a deed setting up the Karen Trust (of which HSBC International Trustee Ltd is also trustee) is void; and (3) the deceased died intestate. The Plaintiff also sought an order that Letters of Administration to the deceased’s estate be granted to her. 4. It is not disputed that if the Will was invalid, the Plaintiff would be the sole person entitled to the deceased’s entire estate under the Intestates Estates Ordinance Cap.73, whatever the position regarding the validity of the Karen Trust. It is also not disputed that the deceased’s estate far exceeds $1,000,000. 5. After an 18-day trial, Andrew Cheung J dismissed the Plaintiff’s claims. 6. The Plaintiff appealed in CACV 200/2008. On 2 July 2010 this court dismissed the appeal. 7. The Plaintiff has applied for leave to appeal to the Court of Final Appeal. Her application has been opposed by the 3rd and 4th Defendants, both of whom benefit under the Karen Trust. HSBC International Trustee Ltd has maintained a neutral position. It has however issued a summons relating to costs. Having heard the parties, I consider that an order should be made in terms thereof. 8. Section 22(1) of the Hong Kong Court of Final Appeal Ordinance Cap. 484 provides: “An appeal shall lie to the Court (a) as of right, from any final judgment of the Court of Appeal in any civil cause or matter, where the matter in dispute on the appeal amounts to or is of the value of $1,000,000 or more, or where the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 or more; (b) at the discretion of the Court of Appeal or the Court, from any other judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court, 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 for decision”. 9. The Plaintiff’s application is made on all three bases: - first, as of right under s.22(1)(a); - secondly, under s.22(1)(b), on the ground that questions of great general or public importance are involved in the appeal; - thirdly, also under s.22(1)(b), that the appeal should otherwise be submitted to the Court of Final Appeal. 10. In Wang Din Shin v Nina Kung alias Nina T H Wang CACV460/2002, 17 November 2004, unrep., this court (Yeung JA, Yuen JA and Waung J) considered the question whether leave should be given to appeal to the Court of Final Appeal in a probate action where the parties held competing wills of the deceased who had left an estate well exceeding $1,000,000. 11. The court was unanimously of the view that leave should be given under the first and third bases (i.e.“as of right” and “otherwise”). Waung J was also of the view that leave should be given under the second basis (“questions of great general or public importance”). 12. Counsel for the 3rd and 4th Defendants agree that that decision would be binding on this court and leave should be given under the first basis (“as of right”), if not for the decision of the Appeal Committee of the Court of Final Appeal in China Field Ltd v Appeal Tribunal (Buildings) (No.1) [2009] 2 HKLRD 135. 13. It is therefore necessary for us to consider Wang Din Shin in the light of China Field. Wang Din Shin 14. (1) In Wang Din Shin, Yeung JA held that although generally a claim to probate involves the right to administer an estate, in the circumstances of that case, under the competing wills, each party was the sole beneficiary under the will propounded by him/her. It was not simply an action concerning the right to administer an estate but a “winner takes all” situation. As such he held that the appeal did involve directly or indirectly, some claim or question to or respecting property or some civil right exceeding $1m and thus qualified for leave “as of right” under the first basis (paras. 9-15). (2) Under the “or otherwise” limb, Yeung JA held that as the judgment was a judgment in rem, and in view of the size of the estate, the “or otherwise” basis should also be invoked (para. 16). 15. (1) In my judgment in that case, I held that taking into account judgments of the High Court of Australia (Oertel v Crocker [1947] 75 CLR 261, explaining Tipper v Moore (1911) 13 CLR 248)and the New Zealand Court of Appeal (In re White [1951] NZLR 428), it was at least reasonably arguable that the case fell within the “as of right” basis (paras. 21-22). In re White was concerned withthe validity of directions in a testamentary document regarding a disposition of approximately £8,000. O’Leary CJ of the New Zealand Court of Appeal held (at p.431): “to regard the case as not one in which ‘directly or indirectly some claim or question to or respecting property or some civil right amounting to or of the value of five hundred pounds sterling or upwards’ seems to us to ignore the realities of the position”. (2) I also held that as the courts have historically given great importance to the grant of probate, and in view of the value of the estate, leave should also be given under the “otherwise” basis (para.23). 16. It would be noted that neither judgment discussed above was founded on an argument that the “as of right” basis should be construed widely. 17. (1) Waung J held however that the “as of right” basis should be given a wide construction (paras.36, 38). He held that not only in the pleadings, but also in reality, the two parties in that case were not merely disputing the validity of the two wills, but the entitlement under the wills to the beneficial interest in the deceased’s estate (paras. 32-35). In any event, relying on Tipper v Moore, he was of the view that it was the value of the estate, and not just the value of what was to be gained or lost by the judgment, that was relevant for the purpose of an appeal “as of right” (para. 37). Further, Waung J referred to a number of reported cases of probate appeals to the Privy Council from different jurisdictions which were brought “as of right” (para. 42). (2) Waung J also held that leave should be given under the “otherwise” basis by reason of the exceptional circumstances of the case (paras.46-49) and as he considered that questions of great general or public importance were involved (paras. 50-52). 18. The question in the present case is: has the judgment in Wang Din Shin been affected by the judgment of the Appeal Committee of the Court of Final Appeal in China Field? China Field 19. In China Field, property developers wished to redevelop properties on Wang Fung Terrace to which they had not yet acquired the legal interest. They submitted redevelopment plans to the Building Authority (“BA”). The BA did not approve those plans. The developers appealed the Building Authority’s decision but the Buildings Appeal Tribunal (“BAT”) dismissed the appeal. The developers then brought judicial review proceedings against the BAT. 20. The developers failed in the judicial review proceedings both in the Court of First Instance and also in the Court of Appeal. They sought leave to appeal to the Court of Final Appeal arguing that they could appeal “as of right”, alternatively that the appeal involved a question of great general or public importance. 21. In construing the legislative requirement that the appeal involved “... indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $1,000,000 ...”, the developers argued that the figure of $1m referred to the value of the property, and not the value of the claim or question (para.