Lwy v. Hm

FCMC1302/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 1302 OF 2015

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R U L I N G

(Leave to appeal)

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Introduction

1.This is an application by the Respondent father for leave to appeal against my judgment dated the 21 March 2016 for final orders for custody/joint custody and the practical arrangements for the child of the family S.

2.In his affidavit in support dated the 24 March 2016 the father said simply that he did not believe that the judgment was in the best interests of the child. He continues to act for himself. Legal Aid was refused and he has appealed against that decision. The hearing of the Legal Aid appeal will take place on the 15 September 2016.

3.On the 18 May and 19 May – shortly before the hearing, the father filed a further two affidavits in which he sets out in more detail the basis for his appeal. Much of it relates to factual issues which have already been dealt with. He has not filed a draft Notice of Appeal.  

The law

4.Section 63A of the District Court Ordinance allows for an appeal to be made to the Court of Appeal with the leave of the presiding District Court judge.  Section 63A of the District Court Ordinance provides as follows:

“Leave to appeal shall not be granted unless the judge hearing the application for leave 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.”

5.It is generally accepted that there needs to be an arguable case in respect of an intended appeal, and, as I have said, that it has a reasonable chance of succeeding.  The Court of Appeal is unlikely to interfere with the exercise of the Court’s discretion unless it can be shown that it has clearly exercised that discretion incorrectly.  Alternatively, it will be necessary to show that the Judge was wrong on the law or in relation to a certain legal principle.

Discussion

6.Having read both of the father’s affidavits it does not seem to me that he has identified any area where there is clearly an appealable point. He continues to make assertions with respect to S’s diet and body weight – some of which are new and were not included in the original papers – but which follow a familiar theme. These assertions have all been taken into account when coming to a final decision with respect to S’s care.

7.Both sides have also attempted to use this hearing to bring up new issues arising in part out of the judgment upon which they now ask for further direction or clarification. I will deal with those issues separately. The father also wishes to be heard with respect to new information concerning S’s health condition and the advisability or otherwise of having vaccinations. I gave him leave to file a separate summons in that respect. 

8.All in all though I am not satisfied that the father has identified on what basis his appeal might have a reasonable prospect of success – or some other reason in the interests of justice why his appeal should be allowed. Consequently the father’s application shall be dismissed. Costs shall be to the wife on a party and party basis to be taxed if not agreed and the petitioner’s wife’s own costs shall be taxed in accordance with Legal Aid Regulations.

Ms J Mak of Messrs Tang, Lai & Leung for the Petitioner

The Respondent appeared in person