Lwy v. Hm

HCMP 1497/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 1497 OF 2016

(ON AN INTENDED APPEAL FROM FCMC NO 1302 of 2015)

_______________

_______________

_______________

JUDGMENT

_______________

Hon Lam VP (giving the Judgment of the Court):

1.This is an application for leave to appeal against the judgment of Judge Melloy [“the Judge”] in FCMC 1302 of 2015. After a 6-day trial, the Judge in a judgment of 21 March 2016 granted sole custody and care and control of a child, S (a boy born in May 2008) to the mother with defined access (including staying access during weekends and holidays) to the father.

2.The Judge was very familiar with the case, having dealt with it previously on interim arrangements.  She recited the background and history of the matter at paragraphs 4 to 8 of her judgment of 21 March 2016, quoting extensively from her previous judgment.  Despite the interim arrangements, difficulties were encountered.  In the end, the Judge regrettably came to this conclusion at paragraphs 61 and 62:

“ 61.   Both parents are involved parents who love their son deeply.  Both are “good enough parents”.   Each has some difficulties.  The mother recognises her limitations and has tried to address them whereas the father maintains that he is justified in the stance that he has often taken.  This has led to many practical difficulties and problems.  Consequently and somewhat reluctantly I have come to the conclusion that there shall be an order for sole custody and care and control of S to the mother with defined access to the father as set out above.

62.   I have decided to make an order for sole custody given the very high level of continuing conflict between the parties and the fact that this does not appear to be one of those cases where an “aspirational” order for joint custody might work.  Indeed this was tried previously and it did not work.  This is a matter of some regret.” 

3.The Judge correctly pinpointed the guiding principles in applications of this nature: that the court shall regard the best interests of the children as the first and paramount consideration.  She explained the legal principles at paragraphs 9 to 11 of her judgment.   After carefully examining the evidence, she applied these principles and came to the conclusions set out above.   

4.The father sought leave to appeal and the Judge refused leave on 30 May 2016.

5.By a summons of 13 June 2016, the father applied to this court for leave to appeal.

6.The mother opposed the application and her solicitor lodged written submission for that purpose on 29 June 2016.

7.Pursuant to section 63A(2) of the District Court Ordinance Cap 336, leave to appeal should not be granted unless this court is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.

8.Having read the grounds of appeal attached (as Attachment A) to the father’s affidavit of 13 June 2016 and all the materials placed before us, we are not satisfied that the appeal has any reasonable prospect of success.  Nor do we see any other reasons in the interests of justice to have the appeal heard.

9.The grounds now put forward by the father are formulated differently from those advanced before the Judge when he sought leave below.  However, other than the ground of procedural inconsistency, we are satisfied that the substance of the other grounds had been canvassed before the Judge.  Those other grounds include the lack of legal representation and the best interest of the child (paragraphs 1 and 3 in Attachment A).  We agree with the Judge that there is no merit in these grounds.  Appeal is not an occasion for an appellant to revisit matters which had been weighed by the judge below.  In this connection, the filing of some primary materials as exhibits to affidavits by the father cannot assist him as the weighing of evidence is a matter for the Judge.  It is not the function of the Court of Appeal to weigh the evidence afresh to see whether we would agree with the Judge, see China Gold Finance Ltd v CIL Holdings Ltd CACV 11 of 2015, 27.11.2015.   Further, the lack of legal representation for the father cannot be a ground of appeal.  Nowadays, there are many cases where litigation was conducted by litigants in person.  The father did not pinpoint any specific part of the proceedings which were conducted in a manner unjust to him.  He failed to persuade us that there is any unfairness in the process.

10.He has not explained why he did not put forward the ground of procedural inconsistency before the Judge.  This court has said on several occasions that we need to be cautious in permitting new grounds to be raised for the first time as we are in effect asked to deal with a ground without the benefit of the view of the court below, see Jenho Development Ltd v Pensonic Technology HCMP 277 of 2013, 25 March 2013; Lehmanbrown Ltd v Union Trade Holdings Inc HCMP 977 of 2015, 17 June 2015; CCMJ v SSM HCMP 2059 of 2015, 7 Dec 2015; Tang Shek Kiu v Tang Lim Kwong HCMP 2643 of 2015, 25 Nov 2015. 

11.Very limited information is placed before us by the father regarding the procedural history of the case at the court below. Based on the statements of the father in his affidavits, we cannot perceive any inconsistency.  As regards his complaint that a 3 month delay was not in the best interest of the child, we cannot accept on his mere assertion that the lapse of 3 month is attributable to the fault of the mother or her solicitor. It depends very much on other steps taken in the course of the proceedings, including those taken by the father.  We do not see any basis for suggesting the Judge did not have the prompt determination of the matter in mind throughout the process.

12.As the Judge is much more familiar with the procedural history of the case, it is all the more important that the ground of procedural inconsistency should have been canvassed before her and we should have the benefit of her judgment on this ground.  The father did not explain why he did not raise the argument before the Judge.  In the circumstances, we do not find it appropriate to entertain paragraph 2 of Attachment A in the present application.  

13.For these reasons, we refuse to grant leave to appeal.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), the Rules of the High Court, we make an order that no party may request this determination to be reconsidered at an oral hearing inter partes.     

14.We also order the father to pay the costs of the mother for this application.  Solicitor for the mother did not submit to us a statement of costs in accordance with the usual practice adopted in leave applications.  Following the course adopted by this court in Rhonda Jeanine Pohn v Mac Richard Pohn HCMP 3439 of 2015, 1 Feb 2016, bearing in mind the complexity of the matter and the inputs from the solicitor for the mother, we fixed the costs at $25,000.  The mother’s own costs are to be taxed according to Legal Aid Regulations with a rider that costs exceeding $25,000 should not be allowed in view of the default of the solicitor to lodge statement of costs.

Written submissions by Ms Jacqueline Mak of Tang, Lai & Leung, assigned by DLA, for the petitioner (mother)

The respondent (father) acting in person