C, Oka v. R, Mtp

FCMP 180 of 2017

[2019] HKFC 30

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FAMILY COURT MISCELLANEOUS PROCEEDINGS

NO. 180 OF 2017

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R U L I N G
(Leave to appeal and leave to adduce fresh evidence)

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Introduction

1.On the 3 December 2018, I handed down my judgment on Relocation, custody, care and control and access. I gave leave for the child of the family, A to relocate to Japan with the father. This part of the order was to take effect after the 21 April 2019. I also made an order for joint custody with care and control to the father and defined access to the mother. I made detailed orders with respect to these access arrangements going forward, which were premised on the mother producing clear breathalyzer tests at regular intervals when the child was with her for extended periods. The hope was that the mother would live up to her promises made during the trial and that it would be possible for access to be conducted on a more regular and reasonable basis going forward.

2.The mother now seeks leave to appeal that order. She also seeks to introduce new evidence after the event.   

The law

Leave to Appeal

3.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.”

4.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

5.The mother’s draft grounds of appeal take issue with the weight attached by the court to various parts of the evidence, but it does not identify any area where the Judge could be said to have been wrong on the law or in relation to any legal principle. In essence it is the mother’s case that the Judge exercised her discretion incorrectly. This is not accepted.

Leave to adduce fresh evidence

6.The mother also seeks leave to adduce fresh evidence namely an affidavit from a Ms. K, although on the mother’s case I have already directed that this witness not be called. With respect that should really be the end of the matter.

7.However, reference can also be made to the test as set out in Ladd v Marshall [1954] 1 WLR 1489, which states as follows:

8.   “To justify the reception of fresh evidence or a new trial, three conditions must be fulfilled: first, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; thirdly, the evidence must be such as is presumably to be believed, or in other words, it must be apparently credible, though it need not be incontrovertible.”

8.In this instance the mother wishes to adduce fresh evidence because she says that this shows that the father has a history of emotionally abusing those he is in an intimate relationship with. I remain of the view that this evidence is unlikely to have assisted the Judge at trial. Further it is clear that the evidence could have been obtained previously and that this point had already been dealt with as part of the court’s case management function. It is not open to the mother to reopen this issue now.  

Conclusion

9.In conclusion, then the Applicant’s summons dated the 17 December 2018 shall be dismissed.  As indicated above I do not believe that it has a realistic chance of success or that there is any other reason in the interests of justice why I should accede to the mother’s request. Although the parties are acting in person I shall nevertheless make an order that the costs shall follow the even in the normal way. Costs shall be to the Respondent father to be taxed if not agreed on a party and party basis.  

10.I should add by way of a post script, that the parties have recently been before the court and it is the father’s case that the mother is on occasions drinking whilst the child is in her care and that she is refusing to provide him with the breathalyzer test results ordered. He also believes that on occasions she has forged the requisite documents in relation to the breathalyzer test results. Given this, the court has warned the mother in the strongest possible terms, that if this behavior continues that the court will have no option but to suspend the defined access that has been ordered. It is very much hoped that this will not be necessary.     

The Applicant and the Respondent both appeared in person