Npyj v. Smrc

FCMC 9098/2018

[2021] HKFC 82

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER 9098 OF 2018

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Coram:  District Judge A. Tse in Chambers (Not Open to Public)

Date of Judgment:  13 May 2021

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J U D G M E N T

( Leave to Appeal publish Judgment on Judiciary website)

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1.This is the Respondent Husband’s applications for leave to appeal against the Order on or about 24 July 2020 to publish on the Judiciary website her Judgment dated 10 July 2020 (“the Decision”).

Applicable Legal Principles

2.Under section 63A(2) of the District Court Ordinance (Cap.336), no leave to appeal shall be granted unless the Court is satisfied that the intended appeal has reasonable prospect of success or that there is some other reason in the interests of justice that the appeal should be heard.

3.Reasonable prospect involves the notion that the prospect must be more than fanciful without having to be probable: see SMSE v KL [2009] 4 HKLRD 125 at § 17 (which is one of the cases cited by the Respondent).

4.In SMSE (supra), Le Pichon JA observed:

“Leave to appeal under Order 59, rule 2B is not lightly granted. The relevant test appears in section 14AA(4) of the High Court Ordinance. In granting leave, the judge must have considered that the test set out in section 14AA(4) had been met. The section requires that the court be 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 before granting leave. Reasonable prospects pf success involves the notion that the prospects of succeeding must be “reasonable”, and therefore more than “fanciful”, without having to be “probable”

5.Paragraph 59/2A/4 of the White Book further provided:

“To meet the “reasonable prospect of success” test, an applicant is required to show more than just an arguable case, but an appeal that has merits and ought to be heard, although he does not have to demonstrate that the appeal will probably succeed.”

6.In KNM v HTF (unrep, HCMP 288/2011, [2011] HKEC 1210)also a case cited by the Respondent), the Court of Appeal (at §9) confirmed that “the relevant test of whether an appeal has a reasonable prospect of success under section 63A [District Court Ordinance], is whether the applicant for leave can show that he has an arguable case with chances of success on appeal. A reasonable prospect therefore means an appeal with prospects that are more than “fanciful” but which do not need to be shown to be “probable”. It was insufficient to show that the appeal was “merely arguable” and “not fanciful for the court to be satisfied that it had a reasonable prospect of success” [See RHC 59/2A/4]/.

7.RHC 59/2A/4 further provided:

“Where the intended appeal is an appeal against the exercise of discretion of the judge below, the applicant would have to show that he has an arguable case with reasonable chances of success that the relevant decision exceeds the generous ambit within which reasonable disagreement is possible, and is in fact plainly wrong, and not merely the appellate court would prefer a solution which the judge had not chosen (RK v YS, HCMP 1969/2012, 1 November 2012, CA).

It has to be noted that whilst the Court would not grant any leave to appeal without a reasonable prospect of success being demonstrated, the converse of not true. Even if the Court takes the view that there is a reasonable prospect of success, it still retains a discretion as to whether to grant leave, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the Court’s exercise of discretion: per Cheung J, (as he then was) in Ho Yuen Ki Winnie & Other v Ho Hung Sun Stanley Sociedade De Turismomn & Other (unrep. HCA 391/2006, 25 May 2009)…”

8.Paragraph 59/0/31 provides as follows:

“Other cases where appeal does not lie…

2. Where decision is not given in a judicial capacity

Where, at the request of the parties, a judge decides a question outside the regular course of judicial proceedings (extra cursum curiae) no appeal lies (Burgess v Morton [1896] AC 136); nor does an appeal lie from an administrative decision (Hoare & Co v Moreshead [1903] 2 KB 559), but the remedy of judicial review may be available (See O.53).

Anaylsis

9.All judgments in the Family Court are uploaded unless special reasons are given. The judgments are sanitized to provide anonymity of the parties. Prior to the upload, a copy of the sanitized judgment is sent to the parties. The parties are invited to comment or put forward their objections within 14 days, failing which the judgment will be uploaded on the judiciary website.

10.In the present case, a copy of the sanitized judgment was provided to the parties. No objection or comments were received by the Court within the 14-day period. The Respondent only raised objections or provided comments after the Judgment has been uploaded.

11.Further, the Court was performing an administrative function in its decision to upload the Judgment, and was NOT acting in its judicial capacity. Under Order 59, no appeal lies in respect of such a decision.

12.In any event, the Respondent intends to appeal against the decision dated 10 July 2020. In the event that leave to appeal were granted, the appeal will be heard in open court with no anonymity.

13.In other words, there is no reasonable prospect of success and there are no other reasons in the interests of justice for the appeal to be heard. Leave to appeal is refused with costs to the Petitioner, to be taxed if not agreed.    

Both the Petitioner and the Respondent acting in person