Cy v. Wtw

FCMC 15393 / 2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 15393 OF 2014

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APPLICATION FOR LEAVE TO APPEAL

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1.On 3 August 2015 the petitioner wife (hereinafter called “W”) made an ex-parte application by way of her 4^th Affidavit for an order prohibiting the respondent husband (hereinafter called “H”) from leaving Hong Kong pursuant to s.52E of the District Court Ordinance. On 23 October 2015 Withers filed a Notice To Act for H in these proceedings. During the scheduled 1^st Appointment hearing dated 27 October 2015, both parties accepted that the ex-parte application for the prohibition order by W’s 4^th Affidavit is no longer necessary in view of that he has entered appearance in these proceedings by solicitors since 23 October 2015, though the parties held different views on the question of costs of the ex-parte application. On 27 October 2015 it is ordered nisi that H is to pay W’s costs of the ex-parte application, and that the costs order nisi becomes absolute 28 days after the order is made unless a party has applied for varying the order.

2.On 23 November 2015 Withers wrote to the court for the variation of the costs order nisi dated 27 October 2015 such that there should be no order as to costs.  On the same day, the said order dated 27 October 2015, regarding the costs issue of W’s ex-parte application, was perfected.

3.On 2 December 2015 H took out the summons for variation of the costs order nisi such that there should be no order as to costs and for enlargement of time for the making of such application.  On the return date on 8 January 2016, H’s application for variation was adjourned to 23 February 2016 for argument, with half day reserved.

4.After trial, by the Ruling handed down on 14 March 2016, it is ordered that:

(1) The costs order nisi dated 27 October 2015 be varied to the effect that there be no order as to costs of the application by W’s 4^th Affidavit; and it is further ordered nisi that

(2) W shall pay 50% of H’s costs of the application for variation of the costs order nisi dated 27 October 2015 by the letter dated 23 November 2015 and by way of the summons dated 2 December 2015, including reserved costs, with certificate for Counsel’s attendance.  The order nisi becomes absolute 14 days after the order is made unless a party has applied to the court for varying the order.

5.This is the hearing of W’s application for leave to appeal to set aside the costs order dated 14 March 2016 by way of her summons dated 29 March 2016.  At the same time, she also applied for leave to rely on the Affirmation of Leung Kwok Kin Joseph affirmed on 29 March 2016 and the exhibits attached thereto and the transcript for the hearing dated 25 November 2015.

6.It is not in dispute that in order for leave to appeal to be granted, it is necessary for W to persuade this Court that the intended appeal has a reasonable prospect of success or that there is some other reason in the interests of justice why the appeal should be heard.  Reasonable prospect of success involves the notion that the prospect of success must be reasonable and therefore more than fanciful, without having to be probable (see SMSE v KL [2009] 4 HKLRD 125). W does not seek to rely on the second limb of the test.

7.As a preliminary issue, I shall deal with W’s application for leave to rely on the transcript for the hearing dated 25 November 2015 and the said Affirmation of Leung Kwok Kin Joseph as follows.  H opposed W’s application for leave to rely on the said transcript on the ground that she has failed to show that the said transcript could not have been obtained with reasonable diligence for use at the trial dated 23 February 2016 (see Ladd v Marshall [1954] 1 WLR 1489)  The audio recording in court proceedings is construed as the official shorthand note for the court proceedings (see Order 68 r.8, R.D.C.)  In other words, it is the record of what took place before the court.  As such, I do not regard that it is fresh evidence.  Insofar as it is indisputable that the hearing dated 25 November 2015 is relevant to the present application, I for my part see no reason why she should not be allowed to reply on the transcript in support of her present application.  About the said Affirmation of Leung Kwok Kin Joseph, the gist of which is Mr. Leung’s account of what took place during the hearing dated 25 November 2015, W’s application to adduce the same is refused.  I consider that the transcript for the hearing dated 25 November 2015 is sufficient to show what happened.

8.A draft Notice of Appeal in support of the application for leave to appeal has been filed.  The proposed grounds of appeal include:

(1) This Court erred in law and/or in fact in finding that this Court has jurisdiction to hear H’s application to vary the costs order nisi dated 27 October 2015;

(2) This Court erred in law in failing to consider the observations or decision made at the hearing dated 25 November 2015;

(3) This Court adopted a wrong approach or wrong legal principles in finding that W’s application for prohibition order is unmeritorious: -

(i) This Court based its finding that the application for prohibition order is unmeritorious solely on the parties’ conflicting affirmations, but it is not the function of the Court to carry out a mini trial on affirmations;

(ii) Further or alternatively, as W did not reply to the 2^nd Affidavit of H, it is wrong in principle for this Court to accept the 2^nd Affidavit of H.

(4) In all circumstances, the Ruling dated 14 March 2016 is wrong.  

9.I shall deal with the proposed Grounds (1) & (2) together.  In the Skeleton Submissions filed on behalf of W, it is argued that: -

(1) An application to vary a costs order nisi should be made by summons or motion, and not informally such as by letter (see paragraphs 22 to 25, 29 of W’s Skeleton Submissions);

(2) On 25 November 2015, this Court refused to grant H’s application to vary the Costs Order Nisi by way of the letter dated 23 November 2015 or to give an extension of the time for H to take out such an application (see paragraphs 14, 27 to 28, 30 of W’s Skeleton Submissions)

(3) For this reason, the costs order nisi dated 27 October 2015 became absolute on 24 November 2015, and it follows that this Court has no jurisdiction to deal with H’s summons dated 2 December 2015 (see paragraphs 18 to 21, 31 to 32 of W’s Skeleton Submissions);

(4) If this Court takes the view that, despite that the costs order nisi dated 27 October 2015 has become absolute and sealed, the court may allow relief from sanction, this Court should take into account Order 2 r.5 of R.D.C. (see paragraph 33 of W’s Skeleton Submissions).

10.W’s first and foremost argument is that this Court was functus officio after the costs order nisi was sealed on 23 November 2015 and become absolute on 24 November 2015.  The point was thoroughly dealt with by this Court in the paragraphs 15 to 19 of the Ruling dated 14 March 2016, in which this Court decided: -   

(1) What was perfected on 23 November 2015 was the costs order nisi and it remained open until 24 November 2015 for H to apply to vary the costs order nisi;

(2) H’s letter dated 23 November 2015 was sent within time;

(3) W’s argument that on 25 November 2015 this court refused H’s application to vary the costs order nisi by the letter dated 23 November 2015 is not supported by what was taken place. On 25 November 2015 this Court did not deal with the said letter dated 23 November 2015.  (I do not change that view after having the opportunity of reading the transcript of the said hearing);

(4) The making of an application to vary a costs order nisi by letter is at worst an irregularity.  On the evidence, no prejudice has been caused by the fact that the application was made by letter but not by way of summons.  Therefore, H’s application should not be rejected by reason of the absence of a summons;

11.By reason of matters said in the above paragraphs 10(1) to (4), the costs order nisi dated 27 October 2015 has never become absolute.  The remarks exchanged between this Court and Mr. Leung at the hearing dated 25 November 2015 cannot possibly change that fact (see Lines O to Q at page 4 of the transcript for the said hearing).  In view of this, it is unnecessary to consider the paragraph 9(4) in the above.

12.During the hearing of the present application, Ms Lau also suggested that this Court should have disregarded H’s application by the letter dated 23 November 2015 by virtue of the fact that he subsequently made the application by the summons dated 2 December 2015.  I see no merit in such suggestion.

13.In view of all of the above, I see no merit in the proposed Grounds (1) & (2).

14.About the proposed Ground (3), as shown in W’s Skeleton Submissions, W’s argument on this point is different from her draft Notice of Appeal.  W now suggests that this Court has failed to take into consideration matters such as that H were repeatedly absent from the previous 1^st Appointment hearings, or that H was not in Hong Kong at some points of time in 2015 (see paragraphs 26, 34 to 37 of W’s Skeleton Submissions) 

15.This Court’s findings on the merits of W’s application for prohibition are set out in the paragraphs 25 to 31 of the Ruling dated 14 March 2016, to wit,

(1) It is indisputable that W is required to satisfy the court that there is probable cause for believing that H is about to leave Hong Kong.  After having carefully examined her 4^th Affidavit, I take the view that W’s evidence in this respect is flimsy and not reliable;

(2) Furthermore, in order to satisfy the requirement that H is “about to leave Hong Kong”, there should be evidence to show that his departure should be imminent, but the evidence adduced by W falls short of what is required.

16.As evident by paragraphs 15(1) to (2), this Court did not carry out a mini trial, or rely on the 2^nd Affidavit of H, as suggested by W.  In view of the same paragraphs, I have also taken the view that it is not necessary to deal with the parties’ arguments on whether H had been avoiding the service of the divorce petition and the accompanying court documents or otherwise obstructing or delaying W’s claim for ancillary reliefs. In the premises, I see no merit in the Ground (3). 

17.About the proposed Ground (4), as shown in W’s Skeleton Submissions, again W’s argument on this point is different from her draft Notice of Appeal.  W now argues that H should be ordered to pay for this Court’s indulgence to exercise its discretion to accept H’s application for variation by the letter dated 23 November 2015 (see paragraphs 38 of W’s Skeleton Submissions)  Actually, despite that he is successful in the application for variation of the costs order nisi such that there should be no order as to costs, H was deprived of half of the costs of the application to vary the costs order nisi for the reason that he made the application for variation by way of the letter dated 23 November 2015 instead of a proper summons (see paragraph 36 of the Ruling dated 14 March 2016).  As to the costs of the summons dated 2 December 2015, it is minimal.  I see no merit in the proposed Ground (4).

18.Despite that it has been argued otherwise on behalf of W, I am satisfied that the intended appeal does not have a reasonable prospect of success.   Accordingly, it is ordered that the application for leave to appeal be dismissed, and ordered nisi that W shall pay H’s costs of the application by the summons dated 29 March 2016, including reserved costs, with certificate for Counsel’s attendance.  The order nisi becomes absolute 14 days after the order is made unless a party has applied to the court for varying the order

Ms Lorinda Lau instructed by Joseph Leung & Associates, solicitors for the petitioner

Mr Eugene Yim instructed by Withers, solicitors for the respondent