Gm-sa also known as Dg,M S v. Ddpj

CAMP 171/2018

[2018] HKCA 1009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 171 OF 2018

(ON AN INTENDED APPEAL FROM FCMC 9657/2016)

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J U D G M E N T

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

1.The husband seeks leave to appeal the decision of Judge Melloy of 27 September 2018. That decision was made in the context of a summons of 8 February 2018 taken out by the wife. By that decision, the judge held that the Court had jurisdiction to entertain the summons and directed that the matter be set down for argument with half day reserved. On 5 November 2018, the judge refused to grant leave to appeal against that decision.

2.Thus, the summons of 8 February 2018 has not been finally determined.

3.We were not told of the circumstances leading to the jurisdiction point being determined in advance of other issues arising from the summons.  It would appear that such a course had occasioned substantial delay to the final disposal of the summons.  Further delay would arise if there shall be a round of appeal before the parties were to resume substantive arguments in the summons (assuming that the jurisdiction point is determined in favour of the wife).  This is highly unsatisfactory in view of the fact that the summons sought relief to govern the interim position pending the High Court action. 

4.Further, the judge was plainly right in holding that the Family Court must at least have jurisdiction to consider matters relating to the implementation and/or enforcement of the Undertakings given to that court.  The same applies in respect of the application for stay put forward by the husband when he applied for leave to appeal to the judge.

5.Hence, the Family Court must have jurisdiction to hear the summons insofar as the wife can bring her prayers for relief into the confines of these jurisdictional bases.  Whether she can actually do so depends on the substantive arguments in the summons which have yet to be advanced.  This Court is not in a position to pre-empt her at this stage.

6.We are of the clear view that the substantive arguments of the summons should be heard and determined first before this Court is asked to consider if leave should be granted for the proposed appeal.  It maybe that after the determination of the summons on the merits, the intended appeal against the decision on jurisdiction will no longer be necessary.

7.In the circumstances, adopting a course similar to the one taken by the Appeal Committee in Pun Lin Fa v Director of Food and Environmental Hygiene (2017) 20 HKCFAR 64, we adjourn the application for leave sine die with liberty to restore after the final determination of the summons of 8 February 2018 by the Family Court.

Mr Richard Todd and Mr Jeremy SK Chan, instructed by Withers, for the petitioner wife

Mr Russell Coleman SC and Mr Robin Egerton, instructed by Oldham, Li & Nie, for the respondent husband