Npyj v. Smrc

FCMC 9098/2018

[2021] HKFC 84

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 against Order dated 23 September 2019)

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1.This is the Respondent Husband’s application for leave to appeal against an Order dated 23 September 2019 (“the Order”).

Background

2.By a summons dated 8 October 2019, the Respondent applied for leave to take the two children of the family out of the jurisdiction for a holiday. That application was dismissed by the Order.

Applicable Legal Principles

3.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.

4.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).

5.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”

6.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.”

7.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]/.

8.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)…”

Analysis

9.In any application regarding the children, the Court has to consider the best interests of the children. Forcing the children to go on holiday with the Respondent would not help rebuild the father and daughter relationship. To the contrary, it would cause further resentment.

10.Pursuant to an order dated 4 July 2019, the Petitioner and the Respondent joint custody of the children of the family was granted to the Petitioner and the Respondent. Under the same order, both parties were granted leave to take the children out of the jurisdiction from time to time.

11.In other words, leave to take the children out of the jurisdiction for holidays has already been granted. The Respondent’s application was only brought because the children are refusing to see him and he wants to use the Court order to threaten the children. The application for leave was completely superfluous and amounts to an abuse of process of the Court.

12.There is no reasonable prospect of success in the proposed appeal and there are no other reasons in the interests of justice for this intended appeal to be heard. Application for leave to appeal is refused.

13.Normally, for children matters, there will be no order as to costs. However, on this occasion, the Respondent’s application amounted to an abuse of process. I make an order that the costs of this application be to the Petitioner, to be taxed if not agreed.

Both the Petitioner and the Respondent acting in person