Ccmj v. Ssm Formerly Known As Skl
Read the full judgment text of FCMP 67/2010 on BabelCite. This FCMP judgment was delivered on 12 August 2015.
1. This is the application taken out by the Applicant (“the Father”) for leave to appeal from the Judgment of this Court dated 5 June 2015 (“the Judgment”). There is also an application for stay or interim stay of execution of the Settlement Order under the terms of the Judgment.
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FCMP 67 / 2010 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 67 OF 2010 ----------------------------
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------------------------- J U D G M E N T ------------------------- 1.This is the application taken out by the Applicant (“the Father”) for leave to appeal from the Judgment of this Court dated 5 June 2015 (“the Judgment”). There is also an application for stay or interim stay of execution of the Settlement Order under the terms of the Judgment. The relevant provisions 2.The jurisdiction to grant leave to appeal rests with section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard. 3.The relevant tests for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hartmann JA at paragraphs 8 and 9 of the Judgment). The Trial Proper 4.At the trial proper, the Father was represented by Counsel Mr. Jeremy S.K. Chan. Since the trial proper which ended with the Judgment, the Father changed his legal team from Messrs. Haldanes to Messrs. Payne Clermont who issued the present Summons for leave to appeal. Counsel Miss Athena Wong was now engaged by the Father to pursue the leave to appeal application. The Mother was represented by the same legal team and Counsel on the instructions of the Legal Aid Department to oppose the Father’s application. The Father’s application 5.The Father in his Summons dated 3 July 2015 sought the following :-
6.Attached with the Summons are the draft Grounds of Appeal (“the Appeal Grounds”) under 4 headings as follows :-
7.Counsel for the Father, Miss Athena Wong, produced a 22-page skeleton submissions (consists of 86 paragraphs) together with a list of cases and authorities. Counsel for the Mother, Mr. Kevin Li, opposed both the applications for leave to appeal and stay or interim stay of execution but fairly conceded that if leave to appeal was obtained by the Father, there will be no objection to a stay of execution of the Settlement Order until determination of the substantive appeal. The Grounds of Appeal 8.At today’s hearing Counsel Miss Athena Wong adopted all the Appeal Grounds. For the sake of brevity, I will deal with each of the 4 headings in the Appeal Grounds by reference to those sub-paragraphs thereunder. (a) Onerous Maintenance Borne by the Father (Paras 1.1 to 1.9) 9.It was submitted under this Appeal Ground that :-
10.The Father’s employment, disclosed means, resources and liabilities were considered and set forth in paragraphs 33 to 41 of the Judgment. His latest financial position as well as all his alleged future liabilities set out in his 27th Affirmation was also considered by this Court at paragraphs 152 to 175 of the Judgment. It was only then that this Court came to its conclusion and finding as to the overall financial means of the Father at paragraph 178 of the Judgment. The Father had not elaborated in any detail or with precision as to how this Court had fallen into any error in law when so finding. Hence, paragraphs 1.1, 1.2, 1.3, 1.6 and 1.9 have no reasonable prospect of success on appeal. 11.As to paragraph 1.4, this has been considered by this Court at paragraph 179 of the Judgment. In any event, as rightly pointed out by Mother’s Counsel, the Father has failed to demonstrate any error in law on the Court’s finding. Thus, paragraph 1.4 has no reasonable prospect of success on appeal. 12.As to paragraphs 1.5 and 1.7, the Father referred to the amount of transportation expenses and food supplements objectively assessed by this Court (at paragraphs 95 and 106 of the Judgment respectively). The Father again failed to demonstrate any error in law on the assessment process or that such findings fall outside the ambit of generosity and reasonableness over children’s expenses. Paragraphs 1.5 and 1.7 have no reasonable prospect of success on appeal. 13.As to paragraph 1.8, it has been considered by this Court at paragraph 157 of the Judgment. Over and again, the Father failed to demonstrate any error in law on the Court’s finding. Paragraph 1.8 has no reasonable prospect of success. (b) Unreasonable Carer’s Allowance (Paras 2.1 to 2.3) 14.It was submitted under this Appeal Ground that :-
15.The Father’s case on the Mother having income, earning capacity, employment prospects and financial resources rests principally on 2 sets of undisputed facts, namely, (i) that the Mother once had had earned income from Nu Skin and; (b) throughout the years, or more precisely during the past 62 months, she had been financially supported by the maiden family, including her father’s canteen business income. The Father alleged that such support came about under the disguise of ‘loans’ which were merely ‘soft loans’ if one has to describe it as any kind of loans. 16.The reasons and evidence put forward by the Mother for sourcing out income from Nu Skin due to the Father’s sudden unilateral reduction of the child N’s maintenance had been fully considered by this Court and accepted as evidence of facts at paragraphs 109 to 112 of the Judgment. Not only was the Father unable to show any error in law of this Court in arriving at such findings of fact, the Father’s argument of ‘earning capacity’ which, given the Mother’s reasons found and accepted by the Court, was forced upon by the Father on the single parent Mother and is, in my view, untenable and unjust. 17.As to the financial support from the maiden family, be it so called ‘soft loans’ by the Father or any other label or description, the real issue is whether those financial support had actually been spent by the Mother for maintaining the child N which should otherwise came from the Father of which the Mother is entitled to be reimbursed (at paragraph 132 of the Judgment). Having considered all the circumstances and analysed the Mother’s evidence on balance of all probabilities, the Court accepted the Mother’s reimbursement claim albeit not upon any findings of ‘soft loans’ but rather on expenses which had reasonably been incurred by her for maintaining the child N. 18.Accordingly, paragraph 2.1 has no reasonable prospect of success on appeal. 19.As to paragraphs 2.2 and 2.3, the reasons for awarding carer’s allowance were set out in paragraphs 112, 114 to 117 of the Judgment which I do not intend to repeat here. Carer’s allowance is always fact sensitive and varies in different cases. This is also essentially a discretionary exercise to be adopted broadly (as per Bodey J in Re P (Child : Financial Provision) [2003] 2 FLR 865). At paragraphs 78 to 82 of the Judgment (at page 883 to 884), where Bodey J said :-
20.The Father in his Form E in February 2014 deposed to have assets in the region of around HK$22.7 million (at paragraph 36 of the Judgment). The Father’s Affirmation in January 2015 deposed of having net assets of HK$20.7 million (at paragraph 38 of the Judgment). It was noted by this Court that the Father is financially capable of acquiring 50% interest in a property in Beijing back in 2007 (without mortgage) and more importantly, the further financial capability for keeping the Beijing property ‘idling around and unrented’ with zero income for around 8 years since 2007 until the time of trial, but paying maintenance fees and other related expenses. With the increase in land prices in Beijing, PRC and the exchange rate between Renminbi and Hong Kong Dollars in recent years, it was found by this Court that the Father’s 50% interest worth around HK$5 million (if not more) (at paragraphs 171 to 175 of the Judgment). Still further, in the latest Form H (that is, costs estimate) filed by the Father’s previous lawyers Messrs. Haldanes on 1 June 2015, legal costs had already run up to around HK$5,115,333.10. It is unfortunate to see that such estimate had already exceeded the Father’s initial proposal (which was then completely withdrawn during trial) for putting up worth of HK$5 million to cater for N’s accommodation costs. This Court, after consideration of the Father’s evidence as to his alleged expenses and liabilities, found the Father’s overall financial means is wealthy (at paragraph 178 of the Judgment). 21.The Father is unable to show any error in law for such award. Paragraphs 2.2 and 2.3 have no reasonable prospect of success. (c) Improbable & Inexplicable Expenditures (Paras 3.1 to 3.4) 22.It was submitted under this Appeal Ground that :-
23.Paragraph 3.1 referred to the expenses claimed by the Mother being improbable, unexplained and/or unsubstantiated by documentary evidence. As I have pointed out in paragraph 135 of the Judgment, the receipts and documents produced by the Mother to the Father lacked completeness. However, having so found, it is also my finding that the Mother had done her best in keeping receipts (at paragraphs 136 to 138 of the Judgment) which had not added up to the exact dollar and cents for the amount claimed as reimbursements for 62 months (at paragraph 135 of the Judgment). Further, a broad brush approach was considered to be the best and fairest way in the quantification exercise (at paragraph 140 of the Judgment). Paragraph 3.1 has no reasonable prospect of success. 24.Paragraph 3.2 referred to the 20% discount applied by this Court. As stated in paragraph 142 of the Judgment, the 20% discount was to delineate those of N’s expenses which came from the Mother’s own moneys from those expenses which should have come from the Father and which need to be reimbursed. Nonetheless, the Father is unable to show the 20% discount is unreasonable or such percentage falls outside the ambit of reasonable discretion of the Court or otherwise it is an error in law to do so. Paragraph 3.2 has no reasonable prospect of success. 25.Throughout the trial and the Father’s case, the Father has not been able to adduce any evidence as to the Mother’s claims were made for her own or her maiden family benefit. Paragraph 3.3 has no reasonable prospect of success. 26.Paragraph 3.4 referred to this Court not having found the financial support from the Mother’s parent and the parent’s canteen business were ‘soft loans’ and form part of the Mother’s personal liabilities. As stated in paragraph 132 of the Judgment, the real issue to be decided is whether there are expenses actually incurred by the Mother for maintaining the child N which falls within the limits of reasonableness and which the Father is now liable to repay to the Mother. This Court’s findings are that there are such expenses. Further, as stated in paragraph 130 of the Judgment, the Mother under cross examination confirmed and agreed the financial support she received from her maiden family had never been repaid but there would be repayment after these proceedings. Such evidence of intended repayment was found to be credible and, in the absence of further evidence in rebuttal, had undermined the Father’s case of ‘soft loans’. Paragraph 3.4 has no reasonable prospect of success. (d) Eviction of the Father out of his Only Property in HK (Paras 4.1 to 4.10) 27.It was submitted under this Appeal Ground that :-
28.Paragraphs 4.1 and 4.2 referred to this Court’s findings of fact as opposed to any error in law. The findings are based upon analysis of evidence which were manifested under paragraphs 57 to 73 of the Judgment which I do not intend to repeat here. Paragraphs 4.1 and 4.2 have no reasonable prospect of success. 29.Paragraph 4.3 is misconceived. The case put forward by the Father was that during access time in the past, he and the child N would either be staying in the Kowloon Tong property owned by SLAFF Limited (the Father’s family owned company) or the One Silver Sea owned by him. At all time until now the Mother has the sole custody, care and control of N. The Father is unable to show any basis for N’s accommodation costs should be borne by the maternal uncle and not by N’s parents, namely, either himself or the Mother. In my view, this is neither a question of reasonableness or unreasonableness between the Father vis-à-vis the maternal uncle to bear N’s accommodation costs as drafted in Paragraph 4.3 nor any error in law of this Court. There is no reasonable prospect of success on this paragraph. 30.Paragraph 4.4 is odd. The Father’s case was that he had already moved out from the Kowloon Tong property in May 2014 (over a year by now) and his parents are still alive (my emphasis). Unless the Father concedes that he had not yet moved out from the Kowloon Tong property, there is no room for the Father to say this Court had erred in rejecting his evidence that he would have to move out after his parents pass away. 31.As to the remaining part of paragraph 4.4, it is misconceived. There is no finding or any conclusion at all of this Court as to when the Father’s parents would pass away. It is entirely incorrect for the Father to say “…….the Court concluded that the Father’s parents would only pass away many years later without any factual basis supporting such a conclusion.” Rather, as rightly submitted by the Mother’s Counsel in his skeleton submissions, the Father’s submission that he would be evicted upon his parents’ demise was rejected for lack of evidence. It is also odd to see that the Father is seemingly criticising this Court for concluding his parents would pass away many years later by saying “…Further, the Court concluded that the Father’s parents would only pass away many years later without any factual basis supporting such a conclusion.” Not only such assertion is without respect to his parents, it is also unfair to the Court. Paragraph 4.4 has no reasonable prospect of success. 32.Paragraph 4.5 referred to the impact on the Father upon implementation of the Settlement Order. With the Court’s finding of One Silver Sea property not being the Father’s only place of residence and also with the Settlement Order in place, this could not constitute a ground of appeal and there is no reasonable prospect of success. 33.Paragraph 4.6 referred to the Father was subject to discharge the existing mortgage liability of One Silver Sea property and thereby tying up a majority of his assets due to the Settlement Order. As I stated in paragraph 67 of the Judgment, the One Silver Sea property encumbered by an existing mortgage would not prevent it from becoming the subject matter of a settlement. There is no question of having to discharge the existing mortgage right away. The corollary is that the Father could continue paying the existing monthly mortgage repayments (which he would have to do so in any event irrespective of whether there is the Settlement Order) without tying up a majority of his assets (at paragraph 71 of the Judgment). 34.Counsel Miss Wong at paragraphs 38 and 39 of her skeleton submissions referred to the observation of Thorpe LJ in the case of Re P (supra) and submitted that the Settlement Order deprived the Father of any right to veto the settlement of the One Silver Sea. With respect, this is incorrect. There is no question of exercising any veto rights to buy another property for the purpose of the Settlement Order as it was the case in Re P. For the present case, the One Silver Sea property is readily there and available to form the subject matter of the settlement. There is also no evidence that the Father would be disposing of it in the near future. Quite contrary it is the Father’s case that he would continue to hold onto the property after his retirement. Paragraph 4.6 has no reasonable prospect of success. 35.As rightly pointed out by Mother’s Counsel in his skeleton submissions, there was no evidence at all throughout the trial as to what disturbance, inconvenience or emotional distress would be caused to the child N if she is required to move into and live in the One Silver Sea property. Paragraph 4.7 has no reasonable prospect of success. 36.As to paragraph 4.8, it referred to N would be staying in the One Silver Sea with the Father during access even without the Settlement Order. The Settlement Order was granted for the long term best interests of N with maximum degree of stability. This could not be comparable with and is entirely different from any short period of access accommodation. Paragraph 4.8 has no reasonable prospect of success. 37.As to paragraph 4.9, the Father is unable to demonstrate any error in law in finding the existing housing arrangement of N to be unreasonable. This Court’s finding was based upon detailed analysis of objective factors and surrounding circumstances of the living condition of N by comparing between her stay with the Father and with the Mother (at paragraphs 24 to 29 of the Judgment). As to the remaining part of paragraph 4.9, it is the Father who had withdrawn his initial offer of providing an alternative accommodation worth HK$5 million for N without any alternative proposals, even without offering renting alternative accommodation (at paragraph 50 of the Judgment). Again, as Mother’s Counsel rightly submitted, this Court was even invited not to consider other viable accommodation in the absence of evidence. Accordingly, it is plainly wrong for the Father to be able to retract now and to submit that this Court had erred in not exploring suitable alternative accommodation. Nonetheless, this had been done by the Court and the only option open for consideration is the One Silver Sea property (at paragraph 54 of the Judgment). Paragraph 4.9 has no reasonable prospect of success. 38.Paragraph 4.10 referred to the Father’s living standard being significantly undermined by the Settlement Order. To support such Appeal Ground, Counsel Miss Wong relied upon paragraph 35 of her skeleton submissions. 39.Counsel Miss Wong at paragraph 35.1 of her skeleton submissions referred to the lack of evidence that the Father would be allowed to stay in the Kowloon Tong property after his parents’ demise. Such submission is, without disrespect to Miss Wong, is incorrect. Since it is the Father’s positive case or assertion (my emphasis) that he would not be allowed to stay after parents’ demise, he has to prove such positive case or assertion by way of cogent evidence rather than relying upon the absence of evidence to prove and support his positive case. This is rather in the reverse. 40.Counsel Miss Wong at paragraph 35.2 of her skeleton submissions referred to any alternative accommodation found by the Father would likely be less favourable than One Silver Sea. This is again incorrect. The Father had never provided any alternative accommodation throughout the trial. There was no such finding of alternative accommodation other than the One Silver Sea property. How would the Father be in a position at this appeal stage to compare his One Silver Sea property with any other alternative accommodation which had never been proposed or found by the Court ? 41.Counsel Miss Wong at paragraph 35.3 of her skeleton submissions repeated paragraph 4.7 of the Appeal Grounds. My reasoning would be the same as paragraph 35 above of this Decision. 42.Counsel Miss Wong at paragraph 35.4 of her skeleton submissions referred to an item of expenses by the Mother which had been rejected by this Court. It is this Court’s express finding against the Mother (at paragraph 76 of the Judgment). How could such submission be referred to by the Father in support of his Appeal Grounds ? 43.Counsel Miss Wong at paragraph 35.5 of her skeleton submissions again referred to ‘tying up’ majority of the Father’s assets. My reasoning would be the same as paragraph 33 above of this Decision and paragraph 71 of the Judgment. 44.Having said, paragraph 4.10 has no reasonable prospect of success. Grounds on interests of justice 45.I also find that there being no other reason in the interests of justice that leave to appeal should be granted. Conclusion 46.For the above reasons, I would dismiss the Father’s Summons dated 3 July 2015 seeking leave to appeal. I also make an order that the Father do pay the costs of the application for leave to appeal to the Mother. As the Mother is legally aided, I also order that the Mother’s own costs be taxed in accordance with Legal Aid Regulations. 47.I also grant Certificate for Counsel. Stay of Execution 48.As the Father’s application for leave is dismissed with costs, the stay of execution of the Settlement Order under the terms of the Judgment is likewise dismissed. Interim Stay of Execution 49.The Father also sought an interim stay of execution of the Settlement Order, in the event that this Court refused to grant him leave to appeal, until his application for leave from the Court of Appeal. Counsel relied upon the applicable principles propounded by Hon Ma J (as he then was) in the case of Star Play Development v. Bess Fashion Management Co Ltd (HCA No.4726/2001). The ground of ‘good reasons’ specifically relied upon is that the absence of a stay would render the appeal nugatory in terms that great disturbance and nuisance would be caused to the child N in moving into a different residence and renovation could be carried out by the Mother (see paragraph 84 of Miss Wong’s skeleton submissions). 50.To start with, Hon Ma J (as he then was) held that it is the court’s discretion whether or not to grant a stay, and it is important to bear in mind that the starting point is RHC Order 59 rule 13 (1). Unless the appellant can justify a stay of execution, one will not be ordered. The practice of the court is that justification can be demonstrated only if good reasons exist. Good reason can exist in a variety of forms. It will be wrong to set out any exhaustive definition of what would constitute good reasons, but, commonly, reference is made to factors such as whether the absence (or existence) of a stay would render an appeal nugatory (thus bringing into focus the relative prejudice that may be caused to the appellant and to the respondent by a stay of execution), and the merits of the appeal (see paragraphs 6, 7 and 8 of Hon Ma J’s Judgment. 51.Hon Ma J (as he then was) then listed out 9 observations in his Judgment with the following important remarks at paragraph 10 :-
52.It is noted that the Father’s reasons for the stay of execution is that the appeal would be rendered nugatory because of ‘disturbance and nuisance’ to the child N for moving into One Silver Sea property. The second part of the reason is that renovation could be carried out by the Mother. Would these reasons fall within the ambit of ‘good reasons’ ? 53.As said earlier, there had never been any evidence adduced by the Father on ‘disturbance and nuisance’ throughout the trial that might be caused to the child N. This is no more than the Father’s personal views unsupported by evidence. Quite contrary, it is the Father’s case that the child had in the past stayed in the One Silver Sea property with him during access times. That being the case, N must be familiarized both with the One Silver Sea property and the surrounding environment. It is not a case of moving N to a place where she had never been there before. Even to leave aside the absence of evidence as to ‘disturbance and nuisance’ before the Court at trial, I firmly believe N would not be disturbed if she knows that she would be moving into the One Silver Sea property. Therefore, the submission as to ‘disturbance and nuisance’ could not be a ‘good reason’ to justify a stay or interim stay of execution by the Father. 54.Again as said earlier, the Mother’s claim for renovation costs was rejected by this Court. The Mother has not appealed against this finding. Thus, it is wrong for the Father to say the Mother would be carrying out renovation. Even in the unlikely event of so doing by the Mother, this would only be at the Mother’s own risks of losing such renovation costs in the event of a successful appeal by the Father. The submission as to renovation could not be a ‘good reason’ to justify a stay or interim stay of execution by the Father or rendering the appeal nugatory. 55.Having said, the terms of the Settlement Order is in the best interests of the child N of which is always the first and paramount concern of the Court over children’s matter. I have also reminded myself the important remarks that, in the balancing exercise, the successful party should not be deprived of the fruits of litigation. One has to ask what is the prejudice, if any, that would arise by the existence or absence of a stay (or interim stay) of execution ? 56.The Father maintained he had now been using the One Silver Sea property as his residence. He claimed it was the place, apart from the Kowloon Tong property, where he and N had stayed during access times in the past. In my view, in the event of a successful appeal by him, it makes no difference insofar as ownership is concerned since he has a reversionary interest under the Settlement Order upon N attaining majority. In terms of the use of the property, given the finding of One Silver Sea not being his only place of residence where he can have a roof over his head, it is also of no significant difference because the implementation of the Settlement Order does not render the Father with no place to live. In terms of his access, it could still take place in the Kowloon Tong property as had happened before or even in One Silver Sea with appropriate arrangement with the Mother or directions from the Court. 57.Given the fact that the Father’s application for variation of N’s custody, care and control has yet to be decided, in the event that the Father was successful, it is possible and likely that N would still be staying in One Silver Sea. Where is the ‘disturbance and nuisance’ to N then ? 58.It is perhaps worth to mention that the Father issued his application for variation of N’s custody, care and control almost 2 years ago back in November 2013. There had already been five (5) Pre-trial Review (PTR) hearings in respect of the Father’s variation application. Without complying the court’s directions, the Father chose to apply for adjournment of his variation application sine die which was scheduled to be heard at the same time at the 5th PTR. This Court handed down full reasons for its Ruling dated 10 June 2015 rejecting the Father’s adjournment application. Further consequential directions were also granted by this Court. The 6th PTR was directed to be fixed after 26 August 2015 but no later than 11 September 2015 in consultation with Counsel’s diaries. 59.It is also worth to mention that there had been protracted litigation between the Father and the Mother for the past 5 years, both at the Family Court and Court of Appeal, since this Court handed down the very first Judgment on 5 October 2012. Throughout these years, N had already been exposed to various examinations and check up both at the medical and psychological level along with police investigation for suspected child abuse and a number of social welfare investigations. It is high time for N, who will be turning to 7 years old in coming November, to have stability and certainty in terms of her growing needs. Any delay in determining N’s future needs, accommodation or otherwise, in my view is highly detrimental to N’s best interests. Any prejudice to any party would have to give its way to N’s best interests. 60.Over 2 months had elapsed since the Judgment (dated 5 June 2015) was handed down and it is now close to mid August and moving towards the end of the summer vacation. To provide N with certainty and stability in terms of her accommodation and housing needs for the coming school year in September is, in my view, imminent, important and in her best interests. It also helps the Mother who has the custody, care and control of N, in the planning of schedules for any tuition and activities for the coming school year. 61.For the above reasons and my conclusion as to the Father’s merits for the intended appeal, I decided to strike the balance with full consideration of N’s best interests and also dismiss the Father’s interim stay of execution application. Orders 62.My Orders are as follows :-
63.This is a costs order nisi which will become absolute if no application to vary the same within 14 days from the date of this Judgment.
Miss Athena Wong instructed by Messrs. Payne Clermont, Solicitors for the Applicant Mr. Kevin Li instructed by Messrs. Stevenson, Wong & Co., Solicitors for the Respondent |
Cases cited in this judgment
Further hearings and rulings under FCMP 67/2010