Zqa and Others v. Scc and Another
Read the full judgment text of FCMP 129/2018 on BabelCite. This FCMP judgment was delivered on 8 September 2020.
1. On 11/6/2019, this Court handed down its decision (“ Contempt Decision ”) having found the 1 st and 2 nd Respondents are in contempt of Court after trial for failing to comply with an Order of the Court dated 16/11/2017 in another set of proceedings under FCMP No.63/2017 (“ 2017 Order ”).
Cited by 3 cases · Cites 3 cases
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FCMP 129/2018 [2020] HKFC 184 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MISCELLANEOUS PROCEEDINGS NO. 129 OF 2018 ----------------------------
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------------------------- D E C I S I O N ------------------------- Foreword 1.On 11/6/2019, this Court handed down its decision (“Contempt Decision”) having found the 1st and 2nd Respondents are in contempt of Court after trial for failing to comply with an Order of the Court dated 16/11/2017 in another set of proceedings under FCMP No.63/2017 (“2017 Order”). 2.On 31/7/2020, this Court handed down its decision on sentencing whereby the 1st and 2nd Respondents were each committed to prison for a period of 3 months (“Committal Decision”). 3.On 12/8/2020, the 1st and 2nd Respondents issued an Inter Partes Summons seeking :-
4.In the draft Notice of Appeal attached to the Summons dated 12/8/2020, it sets out 5 grounds of appeal and seeking (a) the Contempt Decision be quashed; and (b) costs of the appeal and in the Court below be to the 1st and 2nd Respondents. 5.The 1st Respondent’s filed his 3rd Affirmation, which was also filed on behalf of the 2nd Respondent, in support of the application. In this Affirmation, there was an Appendix attached sub-divided into 6 stages containing whatsapp messages since July 2017 up to July 2020 between the 1st Respondent and his then handling solicitor Peter Wong (whom I will refer as “Mr. Wong”) in this Decision. Against these narrated whatsapp messages there were comments/description provided by the 1st Respondent. The 1st Respondent expressly waived the legal professional privilege within those whatsapp messages save on some redacted parts appeared in the Appendix[1]. Besides, it was also attached to the 3rd Affirmation as exhibit “SCC-24” the print-out of the whatsapp messages, including those narrated whatsapp messages appeared in the Appendix. 6.In the 3rd Affirmation, it was divided into 3 parts, namely, Parts A, B and C[2] classified as :-
The applicable law and legal principles 7.The jurisdiction to grant leave to appeal was contained in Section 63A of the District Court Ordinance, Cap.336 which provides that leave to appeal shall not be granted unless the court is satisfied that the appeal has a reasonable prospect of success or there are some other reasons in the interests of justice that the appeal should be heard. It is trite that the duty of showing reasonable prospect of success falls upon the applicant for leave to appeal, namely, the 1st and 2nd Respondents in this case. 8.The relevant test for determining whether the appeal has a reasonable prospect of success is whether the applicant for leave can show that he or she has an arguable case with reasonable chances of success on appeal. A reasonable prospect of success means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable” (see KNM v. HTF, HCMP No.288/2011 per Hon Fok JA (as he then was) at paragraph 9 of that Judgment). 9.In the same Judgment, which also came with an application for extension of time to apply for leave to appeal, His Lordship went on to say :-
10.In determining whether leave to appeal out of time should be given, the following factors have to be considered :-
(see : Norwich and Peterborough Building Society v. Steed [1991]WLR 449 followed by Birkenhead Properties & Investments Ltd v. Leung Yiu & Ors [1998] 1 HKLRD 527.) New Arrangement for Application for leave to appeal 11.From 13/8/2018 and thereafter, the case management practice suggested by the High Court in the case of ZJ v. XWN[3] was adopted in the Family Court for handling applications for leave to appeal. A Protocol was issued to practitioners and members of the public by the Principal Family Court Judge on the same day (“the Protocol”) (**As attached). 12.Paragraphs 4 to 7 of the new arrangement under the Protocol provides :
The Grounds of Appeal 13.In the draft Notice of Appeal, the 1st and 2nd Respondents set out the following 5 grounds, namely :
Discussion Whether there was compliance with the Protocol ? 14.Apart from the Inter Partes Summons dated 12/8/2020 and the 3rd Affirmation of the 1st Respondent (which was also filed on behalf of the 2nd Respondent) in support of the present application for leave to appeal out of time, there was no written statement/skeleton submission setting out why leave to appeal should be granted. This is not only unhelpful but also contrary to paragraph 4(3) of the Protocol. Thus this Court could only confine to reading into the factual matters set forth in the said 3rd Affirmation. 15.More importantly, it is also unclear as to whether paragraph 5 of the Protocol, which is mandatory, had been complied with. Suffice to say is that as at the date of this Decision, no affidavit of service of the Inter Partes Summons and the 3rd Affirmation of the 1st Respondent on the Applicants’ solicitors had been filed. The Inter Partes Summons was marked and also meant to be served on the Solicitors for the 1st, 2nd and 3rd Applicants[4]. In any event, the 1st, 2nd and 3rd Applicants are entitled to file an affirmation to oppose the present application had they been properly served with the Inter Partes Summons and the 3rd Affirmation of the 1st Respondent as per paragraph 7 of the Protocol. 16.Almost 4 weeks had now elapsed since the present application was filed on 12 August 2020, paragraph 6 of the Protocol readily applies. On this alone, I am entitled to strike out and dismiss the 1st and 2nd Respondents’ application for their failure to prosecute their application with due diligence. And I will do so accordingly. 17.In the absence of any affidavit of service, it is unclear whether the Solicitors for the 1st, and 2nd 3rd Applicants are aware of the present application. As a matter of fact, no affidavit in response had ever been filed by the 1st, 2nd and 3rd Applicants. 18.For the sake of completeness, I will go into the merits of the present application for leave to appeal out of time and also the substantive grounds of appeal in the event that my decision to dismiss the present application for failure to prosecute the application with due diligence was overturned by the appellate court. Whether leave to appeal out of time should be given in this case ? 19.It is within the Court’s discretion as to whether justice could be served by allowing extension of time for seeking leave to appeal, given full consideration to the following factors. (a) The length of the delay 20.The Contempt Decision was handed down on 11/6/2019. The 28-day period for appeal expired on 9/7/2019. The present Summons for leave to appeal was issued on 12/8/2020. There was a delay of, say, about 400 days which is substantial and excessive. (b) The reasons for the delay 21.The reasons for the delay can be found at the following paragraphs of the 3rd Affirmation :-
22.I will now deal with each of the reasons for the delay in their order of sequence. 23.For the reason under paragraph 70 of the 3rd Affirmation, I fail to see why and how the length of time between the Contempt Decision and the Committal Order of imprisonment would have any impact or influence on the decision as to whether or not to seek leave to appeal the Contempt Decision. The 1st and 2nd Respondents seem to suggest that their decision to appeal or not to appeal the Contempt Decision only came to their mind when they learnt about the sanction of imprisonment imposed by the Court in July this year which was over 12 months. In my view, had the sanction of imprisonment been a dominant factor for deciding whether or not to seek leave to appeal, it matters not when the Committal Order was passed, be it immediately after the Contempt Decision or 12 weeks or 12 months afterwards. As a matter of fact, the lapse of time had offered the 1st and 2nd Respondents, who have had the benefit of reading the full reasons for convicting them of contempt, ample time and yet another opportunity to take whatever steps as may be appropriate to purge the contempt in the best way they could. At the end, this had not been done. Their decision to adopt a “wait and see” attitude could not be accepted as an excuse for the substantial and excessive delay. 24.For the reason under paragraph 73 (i) of the 3rd Affirmation, the matters advanced under Part C Sections A and B, namely, events which had happened after the trial of the Committal on 13 March 2019 and their lawyer Mr. Wong was continuously engaged (Section A); and the failure to adduce whatsapp messages at the substantive trial hearing of the Committal on 13 March 2019 (Section B) could hardly be acceptable reasons or excuse for the delay. In my view, the 1st and 2nd Respondents’ decisions to continue engage Mr. Wong, rightly or wrongly with hindsight, could not be acceptable reasons or excuse for the delay. The alleged failure to adduce whatsapp messages exchanged with Mr. Wong has nothing to do with the reasons for the delay in seeking leave to appeal. It could not be disputed that whether to adduce the whatsapp messages at the substantive trial hearing of the Committal was a decision made with the benefit of legal advice from Mr. Wong. I fail to see how the 1st and 2nd Respondents could now seize upon their decision to continuously engage Mr. Wong as an excuse for the delay. Had this been lightly accepted as an excuse, it simply opens the floodgate that litigants could place complaints on the lawyers that they had entrusted and then have a change of the legal team when they come to seek extension of time for appealing the Court’s decision. The attempt to lay a blame on the former solicitors, although it may be a matter of complaint as between them and the lawyers, is not a good excuse for the delay[5]. 25.For the reason under paragraph 73 (ii) of the 3rd Affirmation, that is, the time when the Contempt Decision was received by the 1st and 2nd Respondents had passed the time limit for seeking leave to appeal is another non-starter. Had the 1st and 2nd Respondents wanted to appeal, they could have sought extension of time to do so in the way same as what they are now doing soon after (emphasis added) they received the Contempt Decision[6] on 22 July 2019[7]. In my view, they could not get away with their inactivity for the past 400 days by now shifting the blame on their then lawyer Mr. Wong. Given the 28-day period for appeal expired on 9 July 2019[8], the delay allegedly caused by Mr. Wong was only about 13 days (between 9 July 2019 and 22 July 2019). Apparently, the period counting from 22 July 2019 to 12 August 2020 (i.e. the date of this application for extension of time) was around 387 days which was substantial and excessive. 26.For the reason under paragraph 73 (iii) of the 3rd Affirmation, had they not been duly advised on the time limit and merits of bringing an appeal of the Contempt Decision, this is only a cause of complaint upon their legal representatives rather than an excuse for the delay. 27.For the reason under paragraph 73 (iv) of the 3rd Affirmation, that the advice as to the lateness of an appeal of the Contempt Decision only came from their present legal team also is not an excuse for the delay. 28.For the reason under paragraph 73 (v) of the 3rd Affirmation, the practicality of appealing the Contempt Decision had the 1st and 2nd Respondents been given to believe that only a non-custodian sentence may be imposed could hardly be an excuse for the delay or any concern to the Court. Such a submission implicitly hinted that custodial sentence would provoke appeal application. With respect, such a submission is plainly wrong, offensive and unscrupulous. The Court would never be deterred from or threatened by any appeal application when passing the appropriate sentence on contemnor according to established legal principles and the particular circumstances of the case before it. 29.The other submission of pursuing an appeal against the Contempt Decision would mean invariably more costs, time and an unnecessary distraction of proceedings is another lacuna. As a matter of fact, this is exactly what is now happening. 30.For the reason under paragraph 73 (vi) of the 3rd Affirmation, I repeat my decision at paragraph 23 of this Decision. 31.For the reason under paragraph 73 (vii) of the 3rd Affirmation, adopting the approach of “wait and see” what would be the sanction could hardly be an excuse for the delay. This was a free choice of the 1st and 2nd Respondents. No doubt both of them must have prepared to run the risk of not being able to obtain the indulgence of the Court to grant them extension of time to appeal. 32.Taking all the above into account, I decided that there are no acceptable excuses for the substantial and excessive delay of, say, 400 days for seeking leave to appeal the Contempt Decision dated 11 June 2019. (c) The prospects of success 33.As said[9], I have not been assisted by the lawyers for the 1st and 2nd Respondents with any written statement/skeleton submissions or reference to any cases or authorities which they intended to rely upon to support the present application. This is unusual and extremely unhelpful. 34.In all cases of leave to appeal applications, it is pertinent for the appellants to set out in detail and with precision in their written statement/skeleton submissions as to what error of law they envisaged having reasonable prospects of success on appeal and that leave should be readily given. As the trial Judge giving the Contempt Decision and now to have to consider granting leave to appeal, it is wrong for me to “descend into the arena” and, by reading the grounds of appeal and my reasons for the Contempt Decision, to forecast or guess any possible line of contention that the 1st and 2nd Respondents may be arguing to overturn the Contempt Decision. Such an exercise is akin to the Court undergoing a “review” of its own reasons for the decision and then to find out any flaws in the decision that are likely to be overturned or set aside on appeal. 35.With such reminder, I will now go through each of the 5 grounds of appeal set forth in the draft produced in their order of sequence. Ground 1 36.Ground 1 appears to tie in an application for leave to adduce further or fresh evidence for overturning this Court’s finding against the 1st and 2nd Respondents that their non-compliance of the 2017 Order was wilful, deliberate and contumacious. 37.The law on admission of further or fresh evidence when a case went on appeal are well settled. 38.Order 59 rule 10 (2) of the Rules of the High Court provides that the Court of Appeal shall have the power to receive further evidence on questions of fact, either by oral examination in court, by affidavit, or by deposition taken before an examiner, but no such further evidence (other than evidence as to matters which have occurred after the date of the trial or hearing) shall be admitted except on special grounds. 39.In the cardinal case of Ladd v. Marshall[10], it was held that the party seeking to adduce further or fresh evidence after trial must satisfy 3 conditions, namely :-
40.Furthermore, the Court of Appeal has adopted a strict approach in applying the conditions set out in Ladd v. Marshall (supra) for the reason that :-
41.Having said, there are however exceptional cases where the Ladd v. Marshall conditions do not apply, or apply in a modified form. It has been held that, in the following exceptional categories, fresh evidence of pre-trial matters or events may, at the discretion of the court (emphasis added), be admitted notwithstanding the fact that the Ladd v. Marshall conditions are not satisfied[12]. The categories of exceptional cases are :-
42.There are altogether 9 sub-paragraphs, namely, from (i) to (ix) under Ground 1. In a gist, they referred to their previous lawyer Mr. Wong to whom they had provided instructions and documents in a timely manner but whose inaction, lack of attention and/or negligent conduct in handling their case was unbeknown to them. Further, Mr. Wong had not adequately advised them on the consequences of and/or the appropriate steps to take by virtue of the non-compliance with the 2017 Order. 43.I have not been assisted further as to the underlying core issue whether serious allegation of solicitors’ inactivity and/or oversight and/or negligence, whilst proof of the same is wanting, could readily be a ground for granting leave to adduce further or fresh evidence; in particular, those further or fresh evidence per se attracted legal professional privilege (“LPP”) although it had now been waived[13]. 44.Even though the present intended appeal may fall within one of the exceptional cases for adducing further or fresh evidence where the Ladd v. Marshall conditions do not apply[14], or have to be applied in modified form, the court would still have to exercise its own discretion as to whether the further or fresh evidence could be adduced. 45.As said by Fok JA (as he then was) in the KNM v. HTF case, supra, where the delay was inexcusable although insubstantial, the party seeking an extension of time must show a real prospect of success on the merits[15]. In the present case, I have already decided against the 1st and 2nd Respondents that the reasons for the delay are inexcusable and the length of the delay was also substantial and excessive. With such finding in place, together with my decision on striking out and dismissal of the present application for want of prosecution[16], the prospect of success factor must be shown to be a real one rather than merely reasonable. Even this could be shown, which I have not so decided, leave could only be granted upon the second limb of “some other reasons in the interests of justice” under the statutory provisions[17] for granting leave to appeal. 46.The stand or fall of Ground 1 depends on whether leave to adduce further or fresh evidence could be granted. Without the aid of any written statement/skeleton submission from the 1st and 2nd Respondents; coupled with my observation under paragraph 43 of this Decision, I am not convinced that leave should be granted for further or fresh evidence to be adduced at this stage. 47.Having said, I decided that there is no real or reasonable prospect of success on appeal in respect of Ground 1. Ground 2 48.The challenge under this Ground refers to this Court failed to consider or sufficiently consider the contents of the 1st Affirmation together with exhibits and thereby erred in finding against the 1st and 2nd Respondents for not answering the Interrogatories or Amended Interrogatories. 49.As set out in the reasons for the Contempt Decision, the 1st Affirmation of the 1st Respondent was clearly said to be filed in opposition to the Applicants’ claim (emphasis added). There is no reference anywhere in this 1st Affirmation that it was filed or intended to be filed as the affirmation to answer Interrogatories pursuant to the 2017 Order[18]. Thus, there is no basis and in fact wrong, for the Court to input another purpose for the filing of the 1st Affirmation disregarding the clearly stated purpose of filing it by the deponent. To do so is tentamount to the Court usurping the litigation process to the prejudice of the parties. 50.Besides, there is also an issue that such 1st Affirmation was filed out of time without leave to do so being sought from the Court. 51.I find there is no real or reasonable prospect of success on appeal in respect of Ground 2. Ground 3 52.There are 8 sub-paragraphs, namely, from (i) to (viii) under this Ground. The challenge made was that this Court was wrong to infer non-compliance with the 2017 Order was willful, deliberate or contumacious. 53.Sub-paragraph (i) refers to the 1st Affirmation in substance had provided answers to the Interrogatories although not drafted in a desired format or manner. In my decision, such contention is completely devoid of merits. The issue is not the way of drafting or the format used. It was the stated purpose for which the 1st Affirmation was filed. 54.Sub-paragraph (ii) refers to delay in filing of the 1st Affirmation was insufficient for drawing inference against the 1st and 2nd Respondents having done so deliberately. 55.Under the 2017 Order, the 1st Affirmation was required to be filed within 28 days from the said Order, that is, the time would be expired on 14 December 2017[19]. The 1st Affirmation was only filed on 15 May 2018[20], that is, a delay of some 151 days (between 14/12/2017 and 15/5/2018). The fact that there was never any application for time extension or any reason put forward for not applying for leave to do so out of time is suffice to support the finding of deliberate or intent. The 1st and 2nd Respondents could not simply take the law into their own hands and do whatever they want and whenever they like. 56.The contention under sub-paragraph (ii) must fail. 57.Sub-paragraph (iii) must fail. Since the 2nd Affirmation had not been filed, let alone that leave to do so would be required but had never been obtained, the contention that the contents of such “unfiled” 2nd Affirmation were substantially the same as the 1st Affirmation (which was filed but without leave to do so out of time) becomes a non-starter. As said in the Contempt Decision[21], this Court could not even consider the “unfiled” 2nd Affirmation. The need of the 2nd Affirmation was also in doubt if the 1st Affirmation was said to have already provided answers to the Interrogatories. There is also the unexplained fallacy as to the purpose of the “unfiled” 2nd Affirmation. 58.On sub-paragraph (iv), reliance and acting upon their own legal advisers had no impact on this Court’s finding of the 1st and 2nd Respondents’ conduct being willful, deliberate and contumacious unless the legal advisers had been found to be unethical or negligent by their governing bodies, say the Law Society, or the Court. So far this had not happened in this case. 59.On sub-paragraph (v), the lapse of time between affirming the 2nd Affirmation and the date of service of the Amended Interrogatories and the substantive trial hearing on contempt on 13 March 2019 had no impact whatsoever, given the fact that the 2nd Affirmation had never been filed with the Court or properly served on the 1st, 2nd and 3rd Applicants who administered the Amended Interrogatories. 60.The contention under sub-paragraph (v) must fail. 61.On sub-paragraph (vi), the absence of knowledge of the 1st and 2nd Respondents that the 2nd Affirmation was not formally filed or properly served, after it was affirmed on 10 September 2018 and before the substantive trial hearing on contempt on 13 March 2019, was neither here nor there. Reason being that such 2nd Affirmation had never been accepted as evidence to prove compliance with the 2017 Order[22]. That said, no inference of non-compliance had been drawn as per the contention under sub-paragraph (vi). The conclusion that was drawn was that there was no compliance. 62.On sub-paragraph (vii) as to the penal notice and lack of legal advice on consequences of non-compliance, I repeat paragraphs 39 to 47 of my Reasons for the Contempt Decision. 63.The contention under sub-paragraph (vii) must fail. 64.On sub-paragraph (viii), it was wrong to say an inference was drawn on the mere fact of lapse of time alone. From the Reasons for the Contempt Decision, it was clear that the finding made or inference drawn came from all factors properly considered collectively rather than upon an inference drawn from an isolated fact of lapse of time. 65.The contention under sub-paragraph (viii) must fail. 66.I find there is no real or reasonable prospect of success on appeal in respect of Ground 3. Ground 4 67.The 1st Affirmation was specifically stated and filed for opposing the claim by the 1st, 2nd and 3rd Applicants rather than in compliance with the 2017 Order. At the time of filing the 1st Affirmation, which was 15 May 2018, there was no finding of contempt against the 1st and 2nd Respondents yet. Hence. it was wrong for the challenge under this Ground that the Court was wrong to find the 1st Affirmation did not purge the contempt found as per the Contempt Decision (which was dated 11 June 2019). The 1st Affirmation preceded the Contempt Decision. 68.The “unfiled” 2nd Affirmation had never been accepted as evidence for the want of filing and service, let alone leave to do so had never been obtained. Thus, the challenge under this Ground must fall apart. 69.I find there is no real or reasonable prospect of success on appeal in respect of Ground 4. Ground 5 70.This Court having found in the Contempt Decision that the non-compliance was one of “no answer was provided” rather than a case of “insufficient answers were provided”[23]. 71.I fail to see how a complete defiance of the 2017 Order for not providing any answers could not be said to be without remorse or regret. 72.I find there is no real or reasonable prospect of success on appeal in respect of Ground 5. Concluding Views 73.Considering all the above, I find that none of the 5 grounds of appeal had any real or reasonable prospects of success on appeal. (d) The extent of prejudice to the other party 74.In my written Decision on sentence dated 31 July 2020, I said the following :-
75.Given my views and observation above, I have no reservation to say that the extent of prejudice caused to the three Applicants if leave to appeal out of time was granted to the 1st and 2nd Respondents would be significant and repugnant to any sense of justice; if not disastrous to the three Applicants. 76.Taking into account the contumacious attitude and litigation conduct of the 1st and 2nd Respondents, I am satisfied that if leave to appeal out of time was granted, the three Applicants (that is, the mother and the 2 children of the age of 6 and 9) in FCMP 63/2017 who are also the same Applicants in these proceedings, would be seriously prejudiced in their claim for financial reliefs which no Court would encourage or tolerate. If such litigation conduct was to be condoned, I also believe that it is in contravention to the spirit and underlying objectives of the Civil Justice Reform (CJR). Any exceptional circumstances ? 77.To complete the picture, I have also considered whether there are any exceptional circumstances where justice calls for leave to appeal, or granting extension of time to do so, be given to the 1st and 2nd Respondents. 78.Given careful consideration, I do not find any exceptional circumstances exist in the present case. Costs 79.Since there is no evidence before this Court that the 1st, 2nd and 3rd Applicants had been served with this application and no affirmation of opposition had ever been filed by them, I believe it is fair and reasonable that there should be no Order as to costs of this application. Orders 80.I now make the following Orders :-
[** Attached Protocol dated 13 August 2018] Messrs. Krishnan & Tsang, Solicitors for the 1st and 2nd Respondents (Appellants) Messrs. Rowdget W. Young & Co., Solicitors for the 1st, 2nd and 3rd Applicants (Respondents) [1] Paragraph 13 of the Affirmation [2] Paragraph 4 of the Affirmation [3] CAMP 67/20148 [2018] HKCA 436, paragraph 66 [4] See page 3 of the Inter Partes Summons [5] See KNM v. HTF, supra, and Paragraph 9 of this Decision [6] Date of Decision : 11 June 2019 [7] Paragraph 61 of Affirmation [8] Paragraph 20 of this Decision [9] Paragraph 13 of this Decision [10] [1954] 1 WLR 1489 [11] §59/10/8 of Hong Kong Civil Procedure 2020 at p.1212 [12] §59/10/12 of Hong Kong Civil Procedure 2020 at p.1214 [13] §13 of 3rd Affirmation of 1st Respoondent [14] See paragraph 41 of this Decision [15] Paragraph 9 of this Decision [16] Paragraph 16 of this Decision [17] Paragraph 7 of this Decision [18] Paragraph 26 of the Contempt Decision [19] Paragraph 3 of the Contempt Decision [20] Paragraph 25 of the Contempt Decision [21] Paragraphs 28 and 29 of the Contempt Decision [22] Paragraph 28 of the Contempt Decision [23] Paragraph 49 of the Contempt Decision (Lines D to E) |
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