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

FCMP 234 /2022

[2025] HKFC 140

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NUMBER 234 OF 2022

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DECISION ON COSTS

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Introduction

1.  This is my decision on costs of the judgment that was handed down on 25 July 2025 (“Judgment”). See: [2025] HKFC 117

2.  I adopt the abbreviations used in the Judgment.

3.  There are two aspects of costs in these proceedings. The costs of the LN and LK. The costs of LK has been dealt with in the Judgment. The only outstanding issue is the costs of LN.

Legal principles

4.  It is trite that the award of costs is a matter in the court’s discretion.

5.  The general rule is that costs to follow the event.

6.  Order 62 rule 5 of the Rules of High Court and the Rules of District Court provide that the court in exercising its discretion as to costs may take into account the underlying objectives set out in Order 1A rule 1, any written offer made, the conduct of all the parties, whether a claimant who has succeeded in his claim, in whole or in part, or had exaggerated his claim.

LN’s costs

7.  There is one special feature in this case. LN’s legal team told His Honour Judge CK Chan at the Master’s appeal hearing on 14 December 2023 that they would not be charging LN for his legal fees and would only look to the other side for legal costs in the event of a favourable costs order. See: [2024] HKFC 59 at [57].

8.  As to the submissions on costs, my observations and conclusions are as follows:

(1)  The relief awarded to LN after trial was HK$785,032, being the sum of HK$223,128 for the benefit of LN up to the stage of completion of his secondary school studies, plus HK$561,904 if he continues with full time studies after secondary school;

(2)  From the without prejudice offers (“WP offers”)  submitted by the parties, it reveals that a sum of HK$800,000 was offered to LN as early as 28 July 2022 (which was prior to the commencement of these proceedings). On 11 October 2022, LN’s solicitors held the view that HK$800,000 was on the low side;

(3)  Parties thereafter engaged in various WP negotiations. In January 2025, with the assistance of a mediator, parties reached an agreement on the quantum of HK$1,950,000. LN’s legal costs in the sum of HK$650,000 would be paid out of the said amount. It was the understanding of LK that the said amount would be paid into the court, while LN requested the said sum be paid to his solicitors as trustee;

(4)  LK was concerned whether service charge would be incurred for the proposed trusteeship and whether there would be an issue of conflict of interest if the handling partner of LN’s solicitors was to be the trustee of the money to be paid to LN. LN’s solicitors did not answer LK’s enquiries. As a result, parties were not able to reach settlement;

(5)  During the course of WP negotiations, the Mother’s proposed offer for settlement ranged from HK$3.3 million to HK$5.3 million, with costs to LN, was obviously far from reasonable and her legal representatives did not take a proactive step to answer valid enquiries put forward by LK;

(6)  If LN had accepted the HK$800,000 settlement offer prior to the commencement of these proceedings, this litigation could have been avoided;

(7)  In my view, costs play a crucial role in regulating the process of litigation and incentivizing good litigation conduct;

(8)  In the Judgment, I found that the Mother’s claims were far in excess of what constituted reasonable maintenance to accommodate LN’s needs. She was being dishonest with the accommodation and meal expenses at the Hostel, and I also found that the Mother’s proposed plans were not in the best interest of LN. I rejected her proposals which, in my view, point strongly in favour of no order as to costs;

(9)  Upon reviewing the without prejudice correspondences, fortify my view that there should be no order as to costs.

Conclusion

9.  For the reasons set out above, I make no order as to costs in respect of LN’s application, including all costs reserved.

Mr Peter Barnes and Ms Christie Lee instructed by Messrs Hugill & Ip for the Applicant

Ms. Vivien Leung instructed by Messrs Freda Lim & Co for the Respondent

FCMP 234 /2022

[2025] HKFC 117

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS

NUMBER 234 OF 2022

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JUDGMENT

(Claim by a dependant for financial provision under Cap 481)

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Introduction

1.  The relevant background is set out in the judgment of His Honour Judge CK Chan dated 28 March 2024, [2024] HKFC 59 at §§5 to 11 and may be summarised as follows.

2.  Mr. LC (“Deceased”) passed away on 3 March 2022, at the age of 75, with a will. The Deceased was a fish breeder. He was married to Madam Chen. They had 2 children, both are in their mid-40s. The Respondent (“LK”) is his elder son, and subsequently the sole executor and beneficiary of his will.

3.  The Applicant (“LN”) now aged 15, was an illegitimate child of the Deceased. His mother, now acting as his next friend (“Mother”).

4.  The Mother came to Hong Kong as a domestic helper in about 2001. She met the Deceased in around 2002 through text messages. LN was born in 2010.

5.  It was not disputed that ever since the birth of LN and until the death of the Deceased, LN was maintained and under the primary care of the Deceased. The Mother continued to work as a domestic helper elsewhere.

6.  After the Deceased passed away, LN was arranged by the Social Welfare Department (“SWD”) to stay in a children’s hostel (“Hostel”). LN enrolled in a secondary school near to the Hostel.

7.  On 18 May 2023, LK gave an undertaking to pay in his personal capacity to advance on behalf of the estate of the Deceased (“Estate”) a sum of HK$2,495 per month as interim interim maintenance of LN. LK also gave an undertaking on behalf of the Estate to pay 50% of the reasonable costs of LN’s immediate psychological treatment costs.

8.  On 28 March 2024, His Honour Judge CK Chan ordered that LK shall pay a monthly sum of HK$7,200 as the interim maintenance for LN, starting from 1 June 2023 until conclusion of the proceedings or further order of the court.

9.  By a joint table dated 15 April 2025 (“Joint Table”), parties have agreed that the value of the Estate was HK$7,463,760.14 before expenses. After deduction of the expenses, the net value of the Estate was HK$6,006,345.36.

10.  Taking into account LN’s future needs, the Mother makes an open proposal of HK$6,045,212 to be paid out of the Estate as LN’s maintenance. This lump sum would represent the fees for LN to leave the Hostel and rent a 2-bedroom flat, employ a domestic helper to look after him and attend an international school in Hong Kong from September 2026 and would go to the UK for his medical undergraduate studies.

11.  Alternatively, the Mother proposes a sum of HK$6,396,260. This lump sum would represent the fees for LN to go to UK for boarding school from September 2026 onwards, and would stay in the UK for his medical undergraduate studies.

12.  LN’s counsel, Mr Barnes submitted at the closing of trial, that after hearing the evidence of the social welfare officer and the clinical psychologist, the Mother accepted that the proposed option for a flat to be rented, and a domestic helper employed to supervise LN, is unlikely to be appropriate.

13.  LK agrees that the Estate should pay for the reasonable expenses of LN, and he proposes a monthly periodical payment in the sum of HK$9,000 be paid to the Mother for the benefit of LN until he reaches the age of majority, from then on which the periodical payment be paid to LN directly until he finishes full-time education or a lump sum of HK$648,000 being HK$9,000 x 12 months x 6 years, i.e. when LN reaches the age of 21.

The size of the Deceased’s estate

14.  According to the 4th affirmation of LK filed on 4 October 2024, LK explained that the bulk of the Estate was tied up in two landed properties, i.e. the residence of himself and Madam Chen, together with a car parking space and an industrial premises. These properties were held in the name of the Deceased and Madam Chen as tenants in common.

15.  LK and Madam Chen have been residing in the residence for over a decade, while the industrial premises is in a state of disrepair which is neither fit for sale nor for lease.

16.  LK explained that in order to settle all ongoing expenses of the Estate, he had to liquidate all stocks and cash in bank accounts. However, the liquidated funds were insufficient, and he needed to withdraw from his own savings in the amount of HK$432,203.23 to cover the shortfall expenses, including legal costs.

17.  LK further said at the trial that the values of the properties have further decreased. According to his knowledge, the total value of the landed properties should be reduced by at least HK$1.1 million.

18.  Since the parties have filed a Joint Table, I will take the values of the landed properties stated thereon for the purpose of this trial.

Applicable law & legal principles

19.  Under section 3(1)(b)(v) of the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481) (the “Ordinance”), an infant child of the deceased may apply for reasonable financial provision out of the estate of the deceased if he/she is a person, who immediately before the death of the deceased was being maintained, either wholly or substantially, by the deceased.

20.  Section 4 of the Ordinance set out a list of orders which the court may make, such as periodical payments, lump sum or property transfer orders.

21.  Section 5 (1) of the Ordinance sets out 7 matters to which the court is to have regard in exercising the power in section 4. The 7 factors apply to all groups of persons listed in section 3(1) of the Ordinance:

“(a) the financial resources and financial needs which the applicant has or is likely to have in the foreseeable future;

(b) the financial resources and financial needs which any other applicant for an order under section 4 has or is likely to have in the foreseeable future;

(c) the financial resources and financial needs which any beneficiary of the estate of the deceased has or is likely to have in the foreseeable future;

(d) any obligations and responsibilities which the deceased had towards any applicant for any order under section 4 or towards any beneficiary of the estate of the deceased;

(e) the size and nature of the net estate of the deceased;

(f) any physical or mental disability of any applicant for an order under section 4 or any beneficiary of the estate of the deceased;

(g) any other matter, including the conduct of the applicant or any other person, which in the circumstances of the case the court may consider relevant.”

22.  Section 3(2) of the Ordinance clearly states that the level of financial provision to be granted by the court is limited to what is reasonable in all circumstances for the applicant to receive maintenance.

23.  The UK Supreme Court’s judgment in Ilott v The Blue Cross and others [2017] UKSC 17, [2018] AC 545 provides guidance in determining an award for financial provision under English law, i.e. the Inheritance (Provision for Family and Dependants) Act 1975 (the "Act"). The Ordinance has similar provisions as the Act.

24.  The UK Supreme Court recognizes the concept of "maintenance" imports a provision to meet the everyday expenses of living; it is not limited to subsistence level but it also "cannot extend to any or everything which it would be desirable for the claimant to have". See: Ilott v The Blue Cross and others, §14 and Re Coventry (Deceased) [1980] 1 Ch 461 at 485C-D and 494C-F.

25.  It also confirm reasonable financial provision is to be determined on an objective basis; i.e. what is reasonable for the claimant to receive, and not whether the deceased had acted reasonably. See: Ilott v The Blue Cross and others, §16.

Issue

26.  There is no dispute that no financial provision has been made for LN under the Will.

27.  The issue before the court is simple: what is the reasonable financial provision for LN.

The veracity or credibility of witnesses

28.  The general principles applicable to the assessment of credibility of witness are trite and have been summarized by Mr Justice Au-Yeung in Green Light Multiplex Co. Ltd (formerly known as Green Light Marketing Co. Ltd and GLM International Ltd) v. Lam Shi Yan[2024] HKCFI 2101 at §§48-49.

29.  There were four witnesses, namely, the social welfare office Ms Lo (“Ms Lo”), the clinical psychologist Ms Lam (“Ms Lam”), the Mother and LK.

30.  I find Ms Lo and Ms Lam to be reliable witnesses who had maintained neutrality and impartiality in exercising their judgment. They readily admitted that they were not in a position to comment on whether it would be in LN’s best interests if he were to attend boarding school in the UK or switch to an international school and be taken care of by a domestic helper in Hong Kong. They emphasized that the plans have not been implemented or put into practice, it was not possible for them to give any comment on the proposed plans.

31.  I also find LK to be a reliable witness who did not seek to embellish his testimony or deliberately slant his evidence against the Mother.

32.  On the other hand, I find the Mother to be an unreliable and untruthful witness, who had crafted her testimony largely with the benefit of hindsight. The following examples illustrate the incredible aspects of her testimony:

(1)  The Mother, in her 9th affidavit filed on 11 December 2023, 11th affidavit filed on 4 October 2024 and the Joint Table, claimed that LN was required to pay for his accommodation. However, upon my inquiry with Ms Lo in respect of the monthly accommodation charges paid by LN, it was for first time made known to the court that LN was not required to pay any amount for the accommodation and meals at the Hostel. In short, it was and is free;

(2)  Approaching the end of the trial, I directed both parties to confirm with the Hostel staff whether LN is required to pay any sum to the Hostel as accommodation charges. Both parties reported to the court that it was confirmed that LN is not required to pay any sum for his accommodation. Moreover, LN was and is still receiving HK$1,500 per month as his pocket money;

(3)  Mr Barnes tried to explain that the Mother had provided proof that funds had to be paid to the Hostel through the Director of Social Welfare’s account since her 5^th affidavit filed on 28 September 2023. It was accepted that the Mother did file a letter from the SWD, but she did not in anywhere of her affidavit mentioned that LN was not required to pay a single dollar for his accommodation and meals at the Hostel. In my view, the way how the Mother presented her case appeared to be a devious attempt to mislead the court; and

(4)  The Mother claimed that the Deceased told him that there was a 2019 or 2020 will. Under cross examination, when it was pointed out that there was only a will in 2013, the Mother swiftly changed her evidence altogether from initially saying that the Deceased had a fight with Madam Chen in 2019, to there were many fights and finally to the version of the Deceased had a fight with Madam Chen in 2013. Later Mr Barnes tried to clarify the evidence with the Mother. The Mother then said it was in 2019 when the Deceased told her that there was a will.

The Deceased’s wishes §47 of Ilott v The Blue Cross and others

33.  It is useful to recite the following passage from Lord Hughes JSC in Ilott v The Blue Cross and others:

47. It was not correct to say of the wishes of the deceased that because Parliament has provided for claims by those qualified under section 1 it follows that that by itself strikes the balance between testamentary wishes and such claims … It is not the case that once there is a qualified claimant and a demonstrated need for maintenance, the testator's wishes cease to be of any weight. They may of course be overridden, but they are part of the circumstances of the case and fall to be assessed in the round together with all other relevant factors …

34.  The Deceased’s last will was drawn up on 31 January 2013, i.e., 3 years after the birth of LN. Despite the Mother alleged that the Deceased told her that he would like to give everything to LN, but the Deceased did not draw up a new will to that effect.

35.  As explained above, I disbelieved the Mother’s claim that the Deceased intended to draw up a Will which would give everything to LN. If the Deceased did intend to give anything to LN, he could have done so when he was the primary carer of LN. The Deceased could have opened a child savings account with LN and deposit money to that account on a routine basis. The Deceased however did not make any such arrangement.

36.  LK said prior to the Deceased’s death, on 25 February 2022 at 11:47 pm, the Deceased suddenly sent a message to the family’s Whatsapp group, which consisted of Madam Chen, LK and his sister, and said:

“No, LN, then put him to the welfare department”

37.  I accept LK’s submissions that the Deceased had no intention to leave any part of the Estate to LN.

The Mother’s proposed plans

38.  LN complained to the Mother that the Hostel had strict timetable and curfew in which he had to go to bed by 9:30 pm. The Mother contended that remaining in the Hostel was not conducive to LN’s study.

39.  The Mother also said LN complained that the Hostel was noisy and he does not have enough private space, and hence he could not focus on his studies. LN also told the Mother that he was not able to build any meaningful friendships with people in the Hostel.

40.  Ms Lam, met with LN on a monthly basis for psychology sessions. She had over 20 psychology sessions with LN by now. Ms Lam said LN’s situation was not as negative as described by the Mother. Ms Lam said LN only mentioned the Hostel was being noisy a few times during their 20 odd psychology sessions.

41.  Ms Lam said it was true that at the beginning LN found that it was difficult to build relationships with others, but later he found that the Hostel’s social worker, Ms Lin cared about him and described that the relationship with other boarders were not hostile.

42.  Ms Lam was asked whether she agreed that strict time curfew would affect the academic performance of LN. As aptly put by Ms Lam, it all comes down to LN’s own time management and level of motivation.

43.  I see no force in the Mother’s suggestion that LN should leave the Hostel on the ground of strict timetable, curfew and need for private space, when she proposed LN should attend boarding school.

44.  Both hostel and boarding school have strict timetable. The benefits of boarding included to enable young children to better manage their time through a strict timetable, as well as learning to cope with different people.

45.  I agree with counsel for LK, Ms Leung’s submissions that if LN needs more private space for study, he could go to the library to study. As a matter of fact, there are students’ study room at public libraries.

46.  Both Ms Lo and Ms Lam considered that it would be in LN’s best interests to have structured and regulated life-style. At the Hostel, not only there is a strict timetable, there is also a social worker who followed LN’s case and the Hostel would arrange activities for LN as well. If there was any problem, the social worker would be able to provide assistance. Further, they pointed out that LN’s academic results have improved.

47.  Ms Lo, Ms Lam and the Mother agreed that having emotional support is important to LN.Ms Lam said LN had signs of depression, yet she considered LN’s situation was mild.

48.  When Ms Leung queried the Mother that no one could guarantee whether LN could adjust to the proposed boarding school arrangement and receive the same level of emotional support as he received now, the Mother glibly answered that she could guarantee. It was plain to me, however, that there was no basis for her feeble “optimism”.

49.  Despite it was the Mother’s case that it would be beneficial for LN to attend a boarding school in the UK, LN appeared to have some reservations of this plan. Ms Lam said LN had a few good friends now, he did mention to her that if he was to attend boarding school in UK, he was not certain whether he could meet good friends as he did now.

50.  LN was born and raised in Hong Kong. If LN was to attend a boarding school in the UK, he would need to face a number of uncertainties on his own.

51.  First, he would not be able to meet with the Mother on a regular basis. The Mother said she planned to continue to work in Hong Kong. Second, LN would need to familiarize himself with UK on his own. Third, it is uncertain whether the boarding school in the UK would be able to provide the same level of emotional support to LN as SWD and the Hostel provided to him.

52.  I also do not consider it is in LN’s best interests to change to an international school to further his studies. As explained by Ms Lam, LN has reservations of whether he could meet good friends in a new environment. It had took LN some time to gradually adjusted to the current living and studying environment, by switching to an international school would mean LN need to adjust to a new curriculum, learning environment and build up new relationships.

53.  Having considering the evidence and observations of Ms Lo and Ms Lam, I do not find the Mother’s proposals are in the best interest of LN.

54.  While it is truly unfortunate that LN could not reside with the Mother due to the fact that she is holding a foreign domestic helper visa, it does not follow that the Estate is responsible for luxuries the Mother wants for LN.

What is the reasonable financial provision for LN?

55.  By applying the legal framework I have outlined, maintenance imports a provision to meet the everyday expenses of living; it “cannot extend to any or everything which it would be desirable for the claimant to have".

56.  To reiterate, the purpose of the Ordinance is limited to such financial provision as it would be reasonable in all the circumstances of the case for the applicant to receive for his maintenance; the Ordinance is not for the purpose of obtaining legacies out of the deceased’s estate.

57.  Under section 3 of the Ordinance, the court is required to have regard to the manner in which LN was being or in which he might expect to be educated or trained.

58.  When considering reasonable financial provision and maintenance for LN, I bear in mind the standard of living enjoyed by LN whilst the Deceased was alive.

59.  I find the Mother’s claims were far in excess of what constituted reasonable maintenance under the Ordinance.

60.  From the evidence before me, I find that the Deceased adopted a frugal lifestyle. There is no evidence to suggest that the Deceased was a generous husband or father.

61.  The Deceased and LN lived in a farm house in Hung Shui Kiu. The farm house had been repossessed by the landlord after the Deceased passed away.

62.  According to the Whatsapp messages attached to the Mother’s 1^st affidavit, it was noted that shortly before the death of the Deceased, he was concerned about the secondary school interviews of LN. The school mentioned by the Deceased in his messages were all government aided schools. See exhibit “ALM1-8”, the Deceased’s messages on 22 February 2022 at 05:13 and 24 February 2022 at 05:12.

63.  At the time of the death of the Deceased, LN attended a government funded school. While the Deceased was hospitalized, he sent messages to the Mother to remind LN to attend interviews with government aided secondary schools. LN got allocated to a government subsidized secondary school in Hung Shui Kiu. I find that there was an expectation that LN would continue to receive education at a government aided school.

64.  As Ms Lo rightly pointed out LN is in Form 3, he has not even started to choose the subjects for the Hong Kong Diploma of Secondary Education (“HKDSE”), it is premature to pre-empt that LN will attend medical school in the future.

65.  In my view, there is still a significant period of time before LN would have completed his higher or further education. It is not possible for any great detail of what life will look like through the later teens and precisely what needs there will be.

66.  Given the background of how LN was being raised and trained, I do not consider it is reasonable to expect the Estate to fund LN to study in an international school in Hong Kong or a boarding school in the United Kingdom.

67.  LN’s priority need is to complete his secondary education. This is the target of which the award should be aimed at.

68.  Ms Lo confirmed that LN is eligible to continue to reside in the Hostel up to the age of 18. Thereafter, LN can either apply for public housing or in the event he is not able to take care of himself, there is still other hostel available for people over the age of 18.

69.  I consider LN to continue to reside in the Hostel is the only feasible and sensible option in all the circumstances of the case. I will elaborate as follows:

1.  This is a relatively modest Estate and it was most unfortunate that substantial portion of the Estate was spent on defending this application. LK was ordered to pay HK$300,000 as the costs of LN’s interlocutory appeal against Master’s Decision on 21 May 2024. See: [2024] HKFC 105

2.  As stated above, LN will be look after by social worker at the Hostel and in case of emergency, the Hostel will be in a position to notify the Mother and facilitate to provide necessary assistance; and

3.  LN has showed improvement in adjustment and got steady development in the Hostel living and the school.

70.  In the circumstances, LN is to continue to reside in the Hostel and a breakdown of his monthly expenses is as follows:

Monthly Expenses	LN’s claims (HK$)	The Estate’s proposal (HK$)	Court’s assessment (HK$)
Accommodation expenses at the Hostel	Nil
School fees	Nil
Extra tuition (Chinese, and English)	1,860	Not disputed	1,860
Textbooks, learning materials, stationery	125	125	125
Transport to school	Nil
Medical/Dental	125	125	125
Eye check-up and glasses for LN	150	100	150
Extra-curricular activities -Swimming -Badminton	2,792	50, a full swimming course fees has been paid by the Estate and there is no reason why LN needs to take further swimming class. It is unclear why LN needs to have private badminton training when there was no evidence that he is part of the school badminton team.	2,500, I consider that as a teenager LN should attend some extra-curricular activities to enhance his well-being and gain valuable skills. A reasonable allowance should be provided for.
Entertainment/presents	500	300	500
Meals out of home	1,000	800	1,000
Holiday	200	Nil	200
Clothing/shoes (including sporting goods)	200	Not disputed	200
Uniform	250	166.67	200
Mobile phone data plan	168	138	138
Lunches at school and pocket money	1,200		Nil, as SWD is paying 1,500 for LN as pocket money
Others			200, as the possible fee for LN to participate in school outings or holiday camps
Total	8,570		7,198

71.  The assessment calls for a broad brush approach. I consider a sum of HK$7,198 would represent reasonable financial provision for LN. This sum of money is reasonably required to ensure he is maintained, given the limited means of the Mother, the Estate and previous standard of living enjoyed by LN.

72.  The Mother agrees to contribute HK$1,000 as LN’s monthly expenses, hence the amount which is required to be paid by the Estate would be HK$6,198.

73.  I am mindful that when LN reaches the age of 18, he would need to leave the Hostel and in the event he continues with his undergraduate studies, the above sum would not be sufficient, hence I would further add to items as follows:

Monthly Expenses	The court’s assessment (HK$)
Accommodation expenses for public housing or other youth hostel	2,000 per month, according to Ms Lo, LN could apply for public housing in due course and the current monthly rental is less than 2,000 per month
School fees	The current annual tuition fee for Hong Kong’s public universities is HK$42,100

74.  As explained above, there is still a significant period of time before LN completes his secondary education. If LN decides to continue his studies after his HKDSE, doing the best I can, assuming that he would enroll into a full-time undergraduate program with one of Hong Kong’s public universities, the Estate should pay him a lump sum of HK$264,400 (2,000 x 12 months x 4 + 42,100 x 4).

75.  In addition to his daily expenses, LN also claims a sum of HK$560,000 for orthodontic treatment. The Mother produced 2 photographs of LN’s dental mould as evidence. The Mother’s basis for such claim is this: “as LN’s facial feature develops, it has come to my attention that his teeth are quite misaligned. I have arranged for LN to see an orthodontist in August 2024 for an initial consultation”.

76.  According to the Mother’s understanding, LN is not ready to undergo the orthodontic treatment now as his jaw development on both sides of his skull is unbalanced. The Mother was told to budget HK$500,000 for oral surgery on both jaws and around HK$60,000 for orthodontic treatment.

77.  Ms Leung submitted that the Mother has failed to discharge her burden of proof. The Mother could not give any explanation as to why there was no written medical evidence and fee quotation to prove her case.

78.  Under cross examination, the Mother gave different versions of explanation as to why LN was required to have orthodontic treatment. The Mother said LN has “excess teeth” and then “moving teeth” and “loose teeth”. Ms Leung submitted that all these signs would suggest LN needs tooth removal rather than orthodontic treatment.

79.  It is apparent that there is no medical evidence to suggest that LN’s teeth had any significant problem. In my view, HK$560,000 is a substantial amount for orthodontic treatment. In the absence of any medical report and fee quotation, I do not find it reasonable to require the Estate to be responsible for this sum simply based on the Mother’s mere say so. I would not allow orthodontic treatment as part of LN’s reasonable financial provision.

80.  I need to make it clear that the sum of HK$264,400 should only be paid to LN upon he produces evidence to the Estate to prove that he gets admitted and has enrolled to a full-time post-secondary education or university.

81.  I initially consider the source of LN’s needs should come from the sale proceeds of the Deceased’s share in the industrial property for the following reasons:

(1)  The industrial property is a vacant property, producing no net income, and it is no one’s home;

(2)  It would leave LK the benefit of the residential property which is his home, out of the Estate;

(3)  The Deceased’s wishes are to leave everything to LK, by giving LK to remain in the residential property without any interruption would give effect to the Deceased’s testamentary wishes; and

(4)  As mentioned earlier, the Estate incurred substantial legal costs as a result of defending the applications raised by the Mother and there was no available cash.

82.  LK informed the court that he would not sell the industrial property because Madam Chen is also a co-owner of the industrial property. LK said Madam Chen who is already aged 75 has no knowledge of the present litigation and she simply could not take it. LK is prepared to take out personal loan to settle the award to be ordered by the court.

83.  Taking into account that LN is now a Form 3 student, it will take him 3 more years from now to complete his secondary school studies and finish his HKDSE. I accept LK’s submissions that there is a need for LN’s interests to be safeguarded from possible overspending, misuse or dissipation and also to ensure that the periodical payment would be received by LN in a timely manner.

84.  In the circumstances, I consider that a lump sum equivalent to the capitalized maintenance amount be paid into Court for the Court to make periodical payments out to the Mother for the benefit of LN.

85.  In the circumstances, a sum of HK$223,128, being HK$6,198 per month x 12 months x 3 years should be paid into court for the benefit of LN up to the stage of completion of his secondary school studies.

86.  If LN continues with full time studies after completion of his secondary school and reaches the age of 18 whichever is later, then a sum of HK$561,904 being HK$6,198 x 12 months x 4 + HK$264,400 should be directly paid to LN.

Costs

87.  There are two aspects of costs in these proceedings. The costs of LN and LK’s costs.

88.  LN submitted that LK should bear the costs of these proceedings in his personal capacity, because LK had overstepped his duty and has embroiled himself as if personal hostile litigation.

89.  It is LK’s case that reasonable maintenance should be made for LN. LK’s open offer was HK$9,000 per month, while the court assessed amount is HK$6,198 before he finishes his secondary school studies. I do not find LK has acted unreasonably in defending this claim, in particular when I find that the Mother is not a credible and reliable witness.

90.  I find that LK should be entitled to his costs, including all costs reserved, be paid out of the Deceased’s estate, to be taxed on a solicitor and client basis, if not agreed.

91.  I invite parties to make written submissions on LN’s costs within 14 days from the date of this judgment.

Conclusion

92.  Due to the matters set out above, I will make the following order:

1.  A lump sum of HK$223,128 be paid out of the Estate of the Deceased into Court for LN within 28 days from the date hereof;

2.  The lump sums as set out in paragraph (1) above be kept in an interest-bearing account and invested by the Court with a monthly periodical payment in the sum of HK$6,198 for LN be paid out to LN through his next friend for his maintenance on the first day of each month until LN reaches the age of 18 and by then the balance of the lump sum together with interests, if any, be paid out to him in its entirety. The first payment be payable to LN’s next friend on the first working day of September 2025;

3.  A lump sum of HK$561,904 be paid out of the Estate to LN within 28 days from the date when LN continues with full time studies after his completion of secondary school and reaches the age of 18 whichever is later, and having proved that he has been admitted and enrolled into full time studies;

4.  The interim maintenance order of His Honour Judge CK Chan dated 28 March 2024 be discharged;

5.  LK should be entitled to his costs, including all costs reserved, with certificate of counsel, be paid out of the Deceased’s estate, to be taxed on a solicitor and client basis, if not agreed; and

6.  Both parties do lodge their written submissions on LN’s costs within 14 days from the date of this judgment.

Mr Peter Barnes and Ms Christie Lee instructed by Messrs Hugill & Ip for the Applicant

Ms Vivien Leung instructed by Messrs Freda Lim & Co for the Respondent

FCMP 234/2022

[2024] HKFC 105

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 234 OF 2022

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D E C I S I O N
(Summary Assessment of Costs)

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1.  On 28 March 2024, this court handed down a Judgment allowing the Applicant (“A”)’s appeal against Master’s Decision on his interim maintenance (“IM”) application. In the Judgment, it was ordered, inter alia, that the Respondent (“R”) shall pay HK$7,200 per month as IM to A. Costs was also ordered against R to be summarily assessed, of which I now do.

2.  In his statement of costs, A claims costs in the sum of HK$918,700 (including counsel fees of HK$125,000), but R objects and proposes a sum of HK$193,460.

3.  After considering A’s statement of costs and R’s objections, I now summarily assess A’s costs at HK$300,000.

Representation:

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: