Npyj v. Smrc

CAMP 50/2017

[2018] HKCA 20

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 50 OF 2017

(ON AN INTENDED APPEAL FROM FCMC NO 6134 of 2017)

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JUDGMENT

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

1.This is an application for leave to appeal against an interim-interim order by the judge in terms of access by the father to the children, and the bone of contention is whether the access should be unsupervised or supervised. The judge declined to give unsupervised access, and the father wants to seek leave to appeal against that arrangement.

2.An application for leave has been sought from the court below and the judge refused leave on 8 November 2017. Mr Egerton submitted that the judge was wrong, and it boils down to the point that he suggests that the judge placed undue weight on the concern from the previous supervisor and the judge did not follow the recommendation by the expert, Lora Lee, in recommending unsupervised access. 

3.Interim-interim arrangement, as I said over the course of the hearing, was meant to be a very-short-term-basis kind of arrangement and this sort of arrangement would only be or this sort of order would only be made as a temporary measure and in circumstances where the court feels that there are other issues which have to be explored, and the time given to the court to deal with the matter and in preparation of the matter were not sufficient for that purposes.  In the meantime, there has to be some kind of arrangement to regulate the affairs in light of the high conflict between the parties.

4.It is not meant to be an interim arrangement as such.  So parties are at liberty to come back to court to debate on what should be the interim arrangement.  And in light of that, there should not be any impediment as to a party coming back to the court to say, notwithstanding this interim-interim order has been made which is, as I have said, very much a provisional thing, that the correct interim arrangement should be otherwise by seeking an appointment with adequate time for the court and the parties to consider the relevant materials.

5.This is the background to the intended appeal against this order.  Bearing in mind the nature of this sort of arrangement, I wholeheartedly endorse what Butler-Sloss J had said in the case of Re J which was cited by the judge in her decision refusing leave.  In the case of Re J [1989] 2 FLR 304 where her Ladyship said at page 308:

“ I must say I would deprecate the instant appeal of an interim order.”

There was an interim order in that case but we are not even dealing with an interim order.  We are dealing with an interim-interim order.  I continue with the citation.  Her Ladyship referred to their attention being drawn to the case of Edwards v Edwards [1986] 1 FLR 205, at page 209 of that case where the following was said:

“ I venture to comment that appeals concerning a matter of care and control, in order to hold the position pending a full inquiry, are very difficult appeals to establish successfully. The reason for this is simple: it is a matter which is essentially in the discretion of the judge, who sees the parties (although in this case they did not give evidence before him) and who has a ‘feel’ of the case, and, moreover, it is essentially a matter for him during the interim proceedings. But essentially, in interim orders of this kind it must be difficult to establish such a departure from the principles to be applied in an interim decision so as to enable this court to interfere.”

6.After citing this, Butler-Sloss J continued to say the following:

“ I would respectfully adopt those words and say that this is not the sort of case, unless it is extremely plain, in which there should be an appeal against the first part of an interim order made even prior to having the interim application fully litigated.”

7.This is the approach the Court of Appeal in this jurisdiction would adopt with regard to any intended appeal against interim-interim orders.  I say this for the benefit of the profession.  And also one must bear in mind the practical side of the matter.  If there is the possibility of going back to the court for changing the arrangement on an interim-order basis (since this is only an interim-interim order which, as I have explained, is only meant to be temporary, provisional and should only be an arrangement made on the basis that the court has not had the sufficient time and sufficient assistance to fully and properly consider the matter), then it is really very difficult for the parties to say that, “Well, we should come to the Court of Appeal in order to get a feel from the Court of Appeal before we go back to the court below.”

8.The Court of Appeal is not the forum for the parties to make a second attempt when they fail in the first instance, just hoping that the Court of Appeal or judges in the Court of Appeal will form different views on the weight to be attached to a particular factor.  That is not a proper use of an appeal.  As we have said on a number of occasions, in an appeal against discretion, the court is not to exercise the discretion by the members of the Court of Appeal as if we were sitting in the Court of First Instance.  We only examine whether there is any error on the part of the judge which is so plainly wrong.  And in the present context, I would adopt the wording of Butler-Sloss J, unless it is extremely plain that the judge has gone wrong, parties should not come to this court. 

9.On the facts of the present case, I do not think there is any reasonably arguable ground for suggesting that the judge below has gone plainly wrong.  The weight to be attached to the concern in light of the other evidence is very much a matter for the judge.  And in light of that, I do not think the appeal has any reasonable prospect of success.  For these reasons, we would refuse leave. 

10.Notwithstanding the submission of Mr Egerton, we think this is a case where we should follow the usual course.  Even in children matters, unsuccessful applications for leave to appeal are usually visited with costs orders.  And particularly with regard to the very thorough reasons given by the judge in refusing leave, we do not think this is case where the father can say he should be given exceptional treatment.  In the circumstances, we will order the father to pay the costs of the mother in this application.

11.We will fix the costs at the sum of $77,465. 

Ms Christina Tseng, instructed by Au & Vrijmoed, for the petitioner

Mr Robin Egerton, instructed by CRB, for the respondent