Ycks v. Mpkc

FCMC 5771/2018

[2021] HKFC 13

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 5771 OF 2018

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Coram: Deputy District Judge J. Chow in Chambers (Paper disposal)

Date of handing down decision: 15 March 2021

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Decision

(Leave to Appeal)

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Introduction

1.The respondent (“the husband”) filed a summons on 8 December 2020 for leave to appeal against my judgment on ancillary relief handed down on 10 November 2020 (“the Judgment”).

2.The husband’s summons will be considered in accordance with the new arrangement on application for leave to appeal in the Family Court dated 13 August 2018. The husband filed an affirmation of service on 8 December 2020. On 8 December 2020, the husband filed “the Applicant’s Statement as to why leave to appeal should be granted”.  On 22 December 2020, the petitioner (“the wife”) filed her statement in opposition to the husband’s application for leave to appeal.  

3.I do not intend to repeat the facts and evidence of this case. I shall adopt the abbreviations contained in my judgment.

Background

4.Briefly, the wife and husband have 4 children who were aged between 18 and 12 at time of trial. The mother was granted with sole custody, care and control of all children whereas the father was granted with defined and reasonable access. During marriage, the mother has been a housewife taking care of 4 children, the husband worked in the financial field. The family had lived in their matrimonial home, a rented premise, in Lamma Island where the husband owned another property in the vicinity (“the Lamma Property”) which was valued at HK$10,100,000.

5.The wife alleged the husband of non-disclosure of his true financial position and had concealed family assets; the husband on the other hand, said he was out of job for a long time and the value of family assets were depleting. The wife accepted the only available matrimonial asset was the Lamma Property where she had sought for an order of transfer of the Lamma Property to her so as to satisfy both maintenance for herself and the children.

6.I ordered, subject to the first charge of the Director of Legal Aid, the husband do transfer the Lamma Property to the wife with nil consideration within 30 days from date of granting decree absolute and the husband do pay all expenses of the transfer including legal costs and taxes.

Applicable legal principles

7.Leave to appeal shall not be granted unless the court is satisfied the appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard. (See section 63A(2) of the District Court Ordinance, Cap 336.

8.Reasonable prospect of success connotes the prospect of succeeding must be reasonable and more than fanciful, without having to be probable.  An applicant is required to show more than just an arguable case, but he does not have to demonstrate the appeal will probably succeed. Even if the court takes the view that there is a reasonable prospect of success, it still remains adiscretion as to whether to grant leave, though the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court in exercising its discretion. (See commentary of Hong Kong Civil Procedure 2020, §59/2A/4)

The husband’s grounds of appeal

9.The husband is acting in person, he raised a total of 30 grounds of appeal which are more particularly stated as follows. For easy reference, I shall make reference to the paragraphs as per his draft grounds of appeal as follows.

(i)  Paragraph 1: I have erred in making mistakes and is more prone to errors for delaying in handing down the judgment for nearly one year.

(ii)  Paragraph 2: I have erred in refusing to grant an adjournment to allow the husband to prepare the ancillary relief trial and seek legal representation, the husband is prejudiced to adduce fresh evidence to support and explain his current financial position.

(iii)  Paragraph 3: I have erred in refusing to allow the husband to refinance and “borrow loans” from the Lamma Property so as to provide funding for him to engage legal representation whom he was grossly prejudiced and bullied by the wife’s legal representative at trial.

(iv)  Paragraph 4: I have erred in refusing to allow the husband to include in the trial bundle his affirmation made in these proceedings which are relevant and material to the ancillary relief trial for explaining and supporting his current financial situation.

(v)  Paragraph 5: I have erred in refusing to allow the husband to submit further evidence prior to the ancillary relief trial and then to draw adverse inference against him.

(vi)  Paragraph 6: I have erred in failing to compel the wife to return all the husband’s belongings including financial documents in the former matrimonial home which made the husband impossible to produce some of the financial documents as requested to explain his financial situation.

(vii)  Paragraph 7: I have erred in making a finding that the husband is dissipating and hiding family assets and had deliberately not made full and frank disclosure on his income, earning capacity.

(viii)  Paragraph 8: I have erred to give sufficient guidance to the husband who has appeared in person regarding necessary procedures.

(ix)  Paragraph 9: I have erred in reaching a finding in favour of the wife’s evidence. 

(x)  Paragraph 10: I have erred in reaching a finding that the husband did not disclose the building in San Tin which I have misunderstood and misinterpreted the evidence.

(xi)  Paragraph 11: I have erred in ignoring the husband’s explanation as to why he was unable to find a job.

(xii)  Paragraph 12: I have erred in failing to take appropriate, proper and sufficient consideration to the husband’s evidence at trial regarding his financial situation and how the money was spent on the family over the years.

(xiii)  Paragraph 13: I have erred in failing to properly, adequately and/or sufficiently consider the wife’s earning capacity having noted that she has a degree in psychology and had worked 19 years ago as a television commercial producer.

(xiv)  Paragraph 14: I have erred in failing to consider the wife’s real financial resources by accepting her alleged loans and debts in sum of HK$606,900.

(xv)  Paragraph 15: I have erred in failing to find the wife should have contributed to the family expenses as much as the husband.

(xvi)  Paragraph 16: I have erred in adopting the total amount of family assets as per the sum disclosed by the husband in his Form E dated 12 January 2016 when the husband has completely out of job for a long time.

(xvii)  Paragraph 17: I have erred in failing to taking into account the wife’s asset as part of the matrimonial asset.

(xviii)  Paragraph 18:  I have erred in failing to take into account the change of financial circumstances of the parties and the family since 2016.

(xix)  Paragraph 19: I have erred in failing to take into account the fact the children of the family have received financial assistance from school during school year 2017 – 2018 when determining children maintenance.

(xx)  Paragraphs 20 & 21: I have erred in accepting a sum of HK$145,620 per month as the reasonable needs of the wife and the children and should be contributed by the husband solely.

(xxi)  Paragraph 22: I have erred in double counting school fees for the two eldest children of the family by allowing HK$3.3 million for their tertiary education overseas in the UK and US while also allowing a maintenance amount in the sum of HK$33,080 per month per child which has already included in the school fees.

(xxii)  Paragraph 23: I have erred in adopting an arbitrary figure of HK$80,000 per month for 12 months from the date of trial to the handing down of judgment as her expenses.

(xxiii)  Paragraph 24: I have erred in failing to take into account once the Lamma Property be transferred to the wife, she will have a rental income of HK$32,000 per month and she shall be responsible to contribute to the expenses of the children instead of solely by the husband.

(xxiv)  Paragraph 25: I have erred in failing to take into account the age and the proper reasonable needs of the children in computing the years of maintenance that they are entitled to.

(xxv)  Paragraph 26: I have erred in reaching a finding that the husband shall pay an unjustly high sum for the purported benefit of the wife and the children.

(xxvi)  Paragraph 27: I have erred in assessing children maintenance which should have been based on the parties’ and the children’s reasonable needs.

(xxvii)  Paragraph 28: I have erred to have reduced the husband’s contribution to the family vis-à-vis the wife’s available resources and earning capacity.

(xxviii)  Paragraph 29: I have erred in failing to discharge the existing maintenance pending suit / interim maintenance against the husband when the wife and the children’s maintenance has been capitalized in the judgment.

(xxix)  Paragraph 30: I have erred in failing to clarify whether the judgement or the order is a clean break between the parties.

Discussion

10.The grounds of appeal stated in paragraphs 2 – 6 & paragraph 8 are unable to be substantiated. The ancillary relief trial date was fixed on 29 April 2019 and to be heard on 12 November 2019. The husband should have sufficient time to file his evidence. The husband as duly filed his 2^nd Form E for ancillary relief trial on 24 April 2019.

11.The grounds of appeal stated in paragraphs 7; 9 – 18, 26 and 28  concerned finding of fact which I have been contained in the Judgment.

12.The ground of appeal stated in paragraph 8 relating to guidance given to litigant in person. Throughout the divorce proceedings, the husband disputed almost every issue raised by the wife. Ancillary relief trial can only be heard 4 years after the commencement of the previous petition (FCMC 8480 of 2015). In between, the husband has gone through trials on children matters and variation of interim maintenance. I am satisfied the husband is well aware of the procedure of trial.

13.The ground of appeal stated in paragraph 19 relating to school subsidies provided by respective schools was not raised at trial.

14.The grounds of appeal stated in paragraphs 20 – 21 relating to my finding of the husband to shoulder all children maintenance. The husband has earning capacity and holds the bulk of matrimonial asset, on the contrary, the wife who was a housewife, weaker spouse with no savings since marriage. The husband agreed the wife has relied on him financially, the finding on the husband to be responsible for the maintenance of the wife and the children tallied with the husband’s case.

15.The ground of appeal in paragraphs 22, 25 and 27 relating to double counting school fees of the two eldest children is justified. I have in paragraph 48 of the Judgment stated “… I accept the needs of the wife and the children is HK$145,620 when all of them are in town.” It was only the arithmetic of calculating the child maintenance was erred in paragraph 50 of the Judgment, which reads,

“50. Monthly maintenance of each child should be (HK$31,500/5 + HK$107,120/4) HK$33,080. I also project child maintenance for a period of 10 years where child C, child R and child L have completed their full time tertiary education. The aggregate sum should be (HK$33,080 x 4 children x 12 months x 10 years) HK$15,878,400.”

16.The correct calculation should be, taking the children to complete tertiary education at age of 21, the respective children maintenance should be as follows:

(i)  child C, aged 18: [(HK$31,500/5) + (HK$107,120 – HK54,900[1])/4] x 12 months x 3 years = HK$696,780;

(ii)  child R, aged 17: [(HK$31,500/5) + (HK$107,120 – HK54,900[2])/4] x 12 months x 4 years = HK$929,040;

(iii)  child L, aged 14: [(HK$31,500/5) + (HK$107,120/4)] x 12 months x 7 years = HK$2,778,720;

(iv)  child T, aged 12: [(HK$31,500/5) + (HK$107,120/4)] x 12 months x 9 years = HK$3,572,640; and

(v)  the aggregate of children maintenance should be HK$696,780 + HK$929,040 + HK$2,778,720 + HK$3,572,640 = HK$7,977,180.

17.The correct figure of the wife’s needs as quantified in paragraph 53 of the Judgment should be:

(i)	Wife’s maintenance	HK$  957,600
(ii)	Children maintenance	HK$7,977,180
(iii)	Wife’s liability	HK$ 1,566,900
(iv)	Education / school fees for child C and child R	HK$ 3,300,000
		HK$13,801,680
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18.Be it the computation of the children maintenance was incorrect, the gross sum of the wife needs still exceeds the value of the Lamma Property, namely, HK$10,100,000 which I have found should be applied to satisfy maintenance for the wife and the children.

19.The ground of appeal in paragraph 23 relating to an “arbitrary sum” opted for the wife’s expenses pending handing down of the Judgment could not stand. The wife has no saving and has been living on loans, it is therefore just to include such sum during this period. After all, I have discharged the husband’s outstanding maintenance pending suit due and owing to the wife (see paragraph 71 in the Judgment).

20.The ground of appeal stated in paragraph 24 relating to not considering the wife’s contributing to the maintenance of the children when the Lamma Property be transferred to her. The wife was a housewife throughout the entire marriage, she was the only person taking care of 4 children, she is expected to rejoin the labour market after 5 years of time. At time of trial, it is unbeknown to her the level of income that she is able to achieve.

21.The ground of appeal in paragraph 29 relating not to have discharged the order of maintenance pending suit against the husband is justified. I see fit to do so in an order but in fact, the order on transfer of the Lamma Property to the wife has reflected the final determination of ancillary relief between the parties.

22.The ground of appeal stated in paragraph 30 relating not to have stated whether the order of transfer of Lamma Property meant to be a clean break. The wife runs a needs case in this trial as it has been reflected in the content of the Judgment.

23.Finally, ground of appeal in paragraph 1 relating to delay in handing down judgment, it was decided in Allied Success Creation Ltd v. Cheung Hon Kuen [2015] 5 HKLRD 355, Kwan JA stated in paragraphs 18 – 19:

“18. Where it is sought to argue on appeal that the judgment contains errors probably attributable to inordinate delay in delivering the judgment, the approach of the appeal court is that a higher degree of scrutiny is required than the usual cases involving factual challenges. The substantial delay in itself must have weakened the advantage of the trial judge of having seen and heard the witnesses, and this consideration has to be taken into account in reviewing the material which was before the judge (Chow Sau Hei v Ho Keung Yuen & Anr, CACV 112, 113 & 114/2013, 7 July 2014 at §7.8).

24.I accept the length of time for handing down judgment from conclusion is 12 months. Coupled with the double counting of children maintenance pointed out by the husband, albeit it does not affect the outcome of the final determination of ancillary relief that the Lamma Property shall be transferred to the wife to meet maintenance for herself as well as the children, the maintenance sum shall be clarified. I am satisfied this ground of appeal against the Judgment is more than fanciful, with reasonable prospect of success. It is fair to exercise my discretion to grant leave to appeal to the husband.

Stay of execution

25.The general principle to order a stay of execution when seeking leave to appeal is well decided by Ma J (as he then was) in Star Play Development Limited v. Bess Fashion Management Limited, [2007] 5 HKC 84. This is still good law and the same principle was applied by DHCJ MK Liu in Progetto Jewellery Company Limited v. Lau Chiu Ying & anor (by original action; Joy Design Company Limited v. Progetto Jewellery Company Limited (by counterclaim) (HCA 2548 of 2014 / [2020] HKCFI 1835) as follows:

“2. The principles concerning stay of execution have been succinctly summarized by Ma J (as he then was) in Star Play Development Ltd v Bess Fashion Management Co Ltd^[3]. The matters to be borne in mind include the following:

(1) The burden is on the party seeking a stay to make out a positive case to justify the indulgence, not for the successful party to justify why a stay should not be granted.

(2) The existence of an arguable appeal (that is, one with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay. If there is no arguable appeal, no stay would be granted, however exceptional the circumstances may be otherwise justifying a stay of execution.

(3) Even if the court is satisfied that there is an arguable appeal, the appellant must provide additional reasons as to why a stay is justified.

(4) If the suggested additional reason is the possibility of the appeal being rendered nugatory, it is incumbent upon the appellant to provide evidence to substantiate it.  Where it is said that the levying of execution would result in financial ruin or serious financial consequences for the appellant, the court will require good evidence to support this contention, such as the production of accounts or other documents to justify the assertion.  A bare assertion is unlikely to meet with much sympathy where more substantial evidence is available.”

26.In light of granting leave to appeal on two grounds abovementioned, I am satisfied it is a good reason to stay the execution of the judgment pending the appeal.

Conclusion

27.With the reasons foregoing, I see the husband has a real prospect of success in the appeal. I grant leave of appeal to the husband ground stated in paragraph 1 (delaying in handing down judgment) and in paragraph 22, 25 and 27 (double counting of school fees).

28.I make the following orders:

(i)  Leave to appeal be granted to the husband (the respondent) on grounds specified in paragraphs 22, 25 and 27 of the husband’s (the respondent’s) draft grounds of appeal against the judgment handed down on 10 November 2020.

(ii)  The costs of the husband’s (the respondent’s) summons filed on 8 December 2020 be in the cause of the appeal.

(iii)  The wife’s (the petitioner’s) own costs be taxed in accordance with the Legal Aid Regulations.

Mr John Pickavant of Messrs John M. Pickavant & Co, appeared for the petitioner

The respondent appeared in person