Cmw v. Wty

HCMP1064/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 1064 OF 2016

(ON AN INTENDED APPEAL FROM FCMC NO. 8759 OF 2010)

________________________

________________________

______________

JUDGMENT

______________

Hon Chu JA giving the Judgment of the Court:

1.This is the respondent's renewed application for leave to appeal against the decision ("the Decision") of Deputy District Judge G Own ("the Judge") given on 14 January 2016, refusing leave to the respondent to file affirmation for the purpose of the trial of preliminary issues. The respondent also applies for stay of execution of the Decision. 

2.The petitioner opposes the application and has put in a skeleton argument.  It appears from the summons that the respondent has not made the intervener a party to this application.  The intervener has not put in any statement or submission.

Background

3.The respondent and the petitioner were husband and wife.  They have two children who were born in 1999 and 2000.  The intervener is the respondent’s mother.

4.The divorce proceedings in the Family Court were commenced in 2010.  The petitioner and the intervener are legally aided.  The respondent acts in person save for a brief period in 2015.  Decree nisi was granted in May 2011.  In September 2012, after a contested trial, the custody, care and control of the children were granted to the petitioner.  As can be seen from below, the ancillary relief proceedings have a chequered history and remain unresolved as of now.   

5.One aspect of the parties’ dispute over ancillary relief relates to the beneficial interest in two properties, being their former matrimonial home registered in the joint names of the respondent and the intervener, and a property in Tai Po registered in the sole name of the petitioner’s sister.  It is the respondent’s claim that the former matrimonial home is beneficially owned by the intervener, whereas the petitioner has beneficial interest in the Tai Po property.  The petitioner takes issue with the respondent’s assertions.

6.Pursuant to the order of the Family Court, the disputes over the beneficial ownership of the two properties are to be tried by way of preliminary issues.  As early as 9 October 2013, directions were given for the filing of affirmations on the preliminary issues by the petitioner and her sister as well as by the respondent and his mother and brother. 

7.On 31 December 2013, the trial of the preliminary issues was fixed for 8 and 9 May 2014.  In January 2014, upon the respondent’s application, his mother was joined as the intervener.  As a result of a late questionnaire filed by the respondent on 8 March 2014, the May 2014 trial dates were vacated.  In June 2014, a second set of trial dates, namely 15 to 17 October 2014, was given.  After two pre-trial review hearings, the October 2014 trial dates were vacated.  In December 2014, the trial was fixed for 29 and 30 April 2015. 

8.On the first day of the trial on 29 April 2015, the parties entered into settlement discussions.  In the afternoon of the following day, however, the respondent said he was unwell and did not appear. The discussions were grounded and no agreement was reached.  When the trial resumed on 14 May 2015, the respondent was absent.  The trial was further adjourned to 22 and 23 October 2015.

9.Subsequently, two pre-trial review hearings were held on 13 August and 18 September 2015.  The respondent was absent at the first one, and was legally represented in the second hearing.  At the further pre-trial review hearing on 2 October 2015, the respondent’s solicitors applied to join the petitioner’s sister as the 2^nd intervener.  The application was dismissed by the Judge.  The written decision was handed down on 5 October 2015.

10.The trial of the preliminary issues finally commenced on 22 October 2015.  Before that, the respondent’s solicitors wrote to the Court requesting for leave to file affirmation on the preliminary issues.  The Judge refused the application.  On 22 October 2015, the respondent’s solicitor applied to adjourn the trial so that the respondent could file evidence and the other parties could reply to it.  The Judge refused the application.  Thereafter, the respondent became unrepresented.

11.The trial proceeded and continued on 23 and 28 October 2015.  It was adjourned part-heard to 23 and 24 December 2015.  The respondent did not appear at the resumed hearing; he had on the day before faxed a letter to the Court informing that he would be absent as he “got hurt and [was] granted sick leave for a week”.  The trial had to be further adjourned to 15 January 2016.  Eventually the trial resumed on 19 April 2016 and continued on 26 April 2016.  It has been adjourned part-heard to 27 May 2016.

The respondent’s applications to file affirmation

12.In the meantime, on 26 October 2015, after the trial of the preliminary issues had commenced, the respondent, acting in person, issued the summons in question, applying for leave to file affirmation on the preliminary issues, and filed a supporting affirmation. 

13.The respondent advanced three arguments in his supporting affirmation:

(1)   He was not aware of any requirement to file affirmation on the preliminary issues as the Court only directed the intervener, his brother and the petitioner’s sister to file affirmations;

(2)   The Judge had in the 5 October 2015 decision referred to identifying the parties’ case from the affirmations.  Since he had not filed affirmation, there would hardly be any case for him to present; and

(3)   It was his understanding that he has liberty to apply for leave and make application in accordance with court procedure.

14.By the Decision, the Judge rejected the respondent’s arguments and dismissed the summons.  On the first argument, the Judge pointed out that this was a repeated attempt to adduce evidence, when the Court had already refused to give him leave to do so.  The Judge also noted that it was in any event a very late application, made after the trial had commenced, and no satisfactory reason had been given for the delay.  On the second argument, the Judge held that the respondent had misread and misunderstood the 5 October 2015 Decision, notably §60 and its context.  As to the third argument, the Judge noted that it was similar to the first argument.  The Judge further rejected as being irrelevant, the respondent’s oral submission in which he prayed in aid his legal representative’s inactivity as justifying his late application. 

15.The Judge further pointed out that despite a lapse of three years, the trial on preliminary issues and the petitioner’s ancillary relief application have not yet been determined.  He considered it unacceptable and fell short of meeting the underlying objectives of Order 1A of both The Rules of the High Court, Cap. 4A and The Rules of the District Court, Cap. 336H.   

16.The respondent applied to the Judge for leave to appeal to the Court of Appeal.  The application was dismissed by the Judge on 15 April 2016.  By the present summons filed on 28 April 2016, the respondent renewed his application for leave to appeal to this Court. 

Test for granting leave to appeal

17.The threshold for granting leave to appeal under section 63A of the District Court Ordinance, Cap. 336, is trite. Leave will only be granted if the applicant satisfies the court that the intended appeal has a reasonable prospect of success, or there is some other reason in the interest of justice that the appeal should be heard.  Reasonable prospect of success involves the notion that the prospect of succeeding must be More than fanciful, without having to be probable: SMSE v. KL [2009] 4 HKLRD 125.

Intended grounds of appeal

18.In the written submission attached to his affirmation in support of the present application, the respondent raised three grounds of appeal, namely,

(1)   The Decision was wrong;

(2)   The Decision was unfair; and

(3)   The costs order was unfair and unreasonable.

Discussions

19.Before addressing the intended grounds of appeal, it is important to note two matters.  The first is that in his previous application to the Judge for leave to appeal, the respondent only made a bare assertion that the Decision was wrong and had jeopardized his interest, but did not put forward any specific ground or reason.  The grounds he now makes to this Court are therefore new grounds not ventilated before, nor considered by the Judge.  As reiterated in CCMJ v SSM (formerly known as SKL), HCMP2059 of 2015 at §8, save in very exceptional circumstances, in a renewed leave application, the Court of Appeal will not entertain grounds that had not been canvassed at the leave application before the trial judge.  In the present case, the respondent has not even endeavoured to explain why the matters he advances in this application were not raised at he leave application before the Judge.  This is highly irregular and on its own justifies the dismissal of the application.

20.Secondly, the Decision is a case management decision.  It is well established that an appellant who seeks to appeal against a case management decision faces a very high hurdle.  He has to show that the trial judge had gone clearly wrong and made orders which clearly involved an injustice or an inability for the trial court to carry out its task or had erred in principle or that the order was irrational: Wong Kar Gee Mimi v Severn Villa Ltd [2012] 1 HKLRD 887 at §31.

21.Looking at the intended grounds of appeal, we are of the view that the respondent has come nowhere near satisfying this very high threshold.

22.Under Ground (1), the respondent makes various complaints that the Decision was wrongly made. This part of his submission (at §§9 to 18) are barely comprehensible.  It seems to be a repetition of the points he made to the Judge when he sought leave to file affirmation on the preliminary issues.  The Judge had given reasons for rejecting the arguments.  The respondent’s submission has not shown these reasons to be in any way wrong, let alone plainly wrong.

23.Importantly, as pointed out by Mr Yim, the petitioner’s counsel, the 9 October 2013 order in providing for the filing of affirmations was not only directed to the respondent’s mother and brother and the petitioner’s sister, but also extended to the respondent himself.  It is implausible that the respondent was not aware of this and/or was unaware of the need to file affirmation, had he been minded to do so.  

24.Moreover, on 6 November 2013, the petitioner had in compliance with the 9 October 2013 order filed her and her sister’s affirmations, and served her Answer to the respondent’s further questionnaire.  If the respondent did intend to file evidence to respond to them, he should have done so or applied for leave to file affirmations promptly since the trial of the preliminary issues was at that stage about to take place in May 2014.  While he made an application to join his mother on 2 January 2014, the respondent chose not to do anything about putting in evidence until October 2015, three days before the adjourned trial of the preliminary issues was to begin on 22 October 2015.  The delay is both inordinate and inexcusable.   

25.As to the respondent’s complaint under Ground (2) that the Decision was unfair in that he was prejudiced and his interest was jeopardized by his inability to adduce affirmation, we would direct his attention to Order 1A rule 1(a),(b) and (f) of both The Rules of the High Court and The Rules of the District Court.  They include increasing the costs-effectiveness of any practice and procedure, ensuring that cases are dealt with as expeditiously as is reasonably practicable, and ensuring that the resources of the court are distributed fairly.  Under Order 1A rule 3, it is the duties of all parties to assist the court to achieve these underlying objectives. 

26.In Tsang Wai Fan v. Hui Siu Kwong (unreported) HCMP409/2016, 12 April 2016, this Court refused to extend time to appeal against an order refusing to admit affirmation. We said at §43:

“Secondly, while we accept that the ultimate concern of the court is to achieve a just resolution of the case, it does not mean that a party should be permitted to raise any arguable case at any point in the proceedings, on payment of costs. If a party has been afforded a reasonable opportunity to advance its case, the just resolution of the case does not require that he should be allowed a further opportunity in spite of his own inordinate and inexcusable delay. Accordingly, even if the defendant is correct that the 2^nd Affirmation is material to his case …, it does not follow that the Judge erred in the exercise his discretion in refusing to admit it. Any unfairness to the defendant by reason of the non-admission of the 2^nd Affirmation is self-induced, having regard to the long and inexcusable delay on his part.”

27.What we said in Tsang Wai Fan v. Hui Siu Kwong applies equally here.  Given that the respondent’s request to file affirmation was made just days before the trial was to commence, and his summons was filed days after the request was refused and the trial had commenced, there was a real risk that the trial would once again be derailed if leave were given to the respondent to file affirmation.  In these circumstances, the Judge was plainly right, as a matter of case management decision, not to allow this to happen, bearing in mind, as he did, the litigation history of the case and the delay in the determination of the ancillary relief application.  In the light of the respondent’s inordinate and inexcusable delay and his dilatory approach to the matter, he only has himself to blame even if the refusal of leave to file affirmation would, as alleged, result in unfairness to him.  In this regard, however, we note that even up to now, the respondent has not produced a draft of the affirmation he seeks to put in. In the absence of any indication as to the content of the intended affirmation, there is simply no basis for any complaint of prejudice or unfairness.  

28.Finally under Ground (3), the respondent says that the costs order was unfair and unreasonable in that the petitioner should not have instructed counsel to argue the summons, particularly when no legal point was involved.  Costs are within the Judge’s discretion, and appellate court rarely interferes.  The respondent’s summons was issued and heard in the middle of the trial of the preliminary issues.  If it was granted, it could derail the trial, causing further delay to the petitioner’s ancillary relief application.  Mr Yim has been involved in, and is conversant with, the ancillary relief proceedings and the trial of the preliminary issues.  In these circumstances, it was not unreasonable for the petitioner to appear by counsel at the hearing of the respondent’s summons. Neither was the Judge’s costs order unfair or unreasonable.   

29.For the above reasons, none of the intended grounds of appeal enjoys reasonable prospect of success.  There is also no other reason in the interest of justice for these grounds to be heard by the Court of Appeal.  We therefore refuse leave to appeal.  It follows that the application or stay of execution is also refused.   

30.As the intended appeal is totally without merit, we further order pursuant to Order 59 rule 2A(8) of The Rules of the High Court, that no party may request a reconsideration of our determination under rule 2A(7)  at an oral hearing inter partes.

31.Applying the normal rule of costs follow event, we order the respondent to pay the petitioner the costs of this application, to be taxed if not agreed.  We further order the petitioner’s own costs be taxed in accordance with the Legal Aid Regulations. 

Disposition

32.Accordingly, we made the following orders:

(1)   The respondent's summons is dismissed.

(2)   No party may request a reconsideration of the determination of the respondent’s summons under Order 59 rule 2A(7) of The Rules of the High Court at an oral hearing inter partes.

(3)   The respondent pays the petitioner the costs of this application, to be taxed if not agreed.

(4)   The petitioner’s own costs be taxed in accordance with Legal Aid Regulations.

Mr Eugene W T Yim, instructed by Hastings for the petitioner.

The respondent (applicant), unrepresented, appeared in person.