The Court of Appeal (“CA“) dismissed Chinachem Charitable Foundation Limited’s (the “Foundation”) appeal on 11 April 2014 and held that Nina Wang had given her estate of about HK$82.86 billion to it as a trustee holding it on charitable trust and not as an absolute gift (see previous blog post for details).  The Foundation subsequently sought leave to appeal to the Court of Final Appeal (“CFA“) and the CA granted that leave on 15 September 2014.

The Foundation sought leave under the “as of right” limb and the discretionary limb in section 22 of the Hong Kong Court of Final Appeal Ordinance, which provide that, among other things, an appeal lies to the CFA:

  • as of right, from any final judgment of the CA in any civil cause or matter … 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“; and
  • at the discretion of the CA… from any other judgment of the CA in any civil cause or matter, if, in the opinion of the CA… 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 CFA for decision“.

The CA granted leave under the “as of right” limb. It made the following observations as to the application of that limb generally:

  • the claim must be a claim to some particular property or to a proprietary right of the requisite value. Other types of claim are insufficient, even if they are incidental to the enjoyment of property rights;
  • the Court focuses on the value of the claim instead of the value of the property or proprietary value in considering the threshold amount;
  • if the appeal is successful, the order which the CFA would make must have the immediate effect of conferring or imposing on the relevant parties a financial benefit or detriment in the quantified amount. It is not enough to show that such a financial impact is a likely eventual result (the “immediacy requirement“).

The estate in question has a value well exceeding $1,000,000. Turning to the immediacy requirement, the CA:

  • was satisfied that, although Ning Wang’s Will and the Foundation’s constitution place limits on how the Foundation could use the property, this did not prevent the Foundation from being the absolute owner of the estate if its appeal is successful;
  • rejected the Secretary for Justice’s suggestion that the Foundation is merely an administrative vehicle for administering property for charitable purposes for the public benefit. The CA noted that a charity has legal and equitable ownership over its property, and is not merely an administrative vehicle.

The CA therefore granted the Foundation leave to appeal to the CFA.