Npyj v. Smrc

FCMC 9098/2018

[2021] HKFC 85

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)

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1.This is the Respondent’s application for leave to appeal against an order dated 10 July 2020 (“the Order”).

Background

2.The Respondent took out a series of 11 applications before the Court. Those applications were all heard on the same day. The Court made costs orders in respect of each application. Save for one application, where the Respondent asked for the costs to be reserved, the costs orders were never in dispute and were never argued. The costs of one of those applications were reserved pursuant to the request of the Respondent.

3.The case was then transferred to Deputy Judge Chow (“the docket Judge”) as a result of operational movements within the Judiciary.

4.On 18 May 2020, the Respondent took out a summons for amendments to the Order dated 10 July 2020 under the slip rule and for variation of the costs orders.

5.Pursuant to a direction from the docket Judge, the matter was transferred back to this Court for disposal. The Respondent’s applications for amendments under the slip rule was granted. His application for variations of costs orders were dismissed. He is now appealing against the dismissal of his application.

Applicable Legal Principles

6.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.

7.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).

8.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”

9.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.”

10.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]/.

11.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)…”

The Grounds of Appeal

12.The grounds of the intended appeal are as follows:-

“1. The learned Judge was already functus officio and had no jurisdiction to make the Order/Judgment as – by her own Order dated 18 May 2020 – carriage of the case had been transferred to another Judge: Deputy District Court Judge J.Chow.

2. In the alternative, the Learned Judge should not have made the Order/Judgment in the light of the express basis of the Respondent’s withdrawal of his application for recusal which he did at the hearing held on 18 May 2020. This was on the clear and express understanding that the Learned Judge would not adjudicate upon any matters which were “contentious” and would only give directions. In the Judgment which contains the Order, the Learned Judge has clearly “entered the arena” and made observations which are prejudicial to the Respondent and his case.

3. In the further alternative, even if the Learned Judge had jurisdiction 9which is denied), the Learned Judge should have granted the Respondent an opportunity to be heard instead of vacating the hearing on 16 July 2020 and then deciding the matter on paper at the whim of the Petitioner.

4. The Learned Judge’s omission to afford the Respondent a hearing and/or afford the Respondent an opportunity to be heard as to whether there should be a hearing is contrary to the law as established by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277. Also, this is contrary to the principle of “audi alteram partem” and the case of Browne v Dunn [1893] 6 R.67.H.L.

5. The respondent reserves the right to file supplemental Grounds of Appeal generally and/or pursuant to the rule in Ladd v Marshall.”

Analysis

13.I will now deal with each of the above grounds in turn.

14.The case was transferred to Deputy Judge Chow as a result of operational needs within the Judiciary. Deputy judge Chow then became the “docket” Judge. However, this does not mean that this Court is functus. For example, the matter could be heard pursuant to the directions from the docket Judge, or when this Court is sitting as a duty Judge.

15.In any event, the case was remitted to this Court pursuant to the directions of the docket Judge. This Court clearly has jurisdiction to hear the case.

16.One of the applications at the hearing on 10 July 2020 was an application by the Respondent for this Court’s recusal on the ground of bias. The application was withdrawn after the Respondent was informed of the operational movements within the Judiciary and that Deputy Judge Chow would become the docket Judge.

17.Some of the applications made by the Respondent by summons dated 18 May 2020 were outside the jurisdiction of the Family Court. For example, he asked that the statutory demand made by the Petitioner be set aside and for an apology from the Petitioner. The Family Court has no jurisdiction to hear such matters which are only within the jurisdiction of the Court of First Instance.

18.The costs orders made on 10 July 2020 were non-controversial. The Respondent has simply changed his mind after the hearing and that is insufficient for an application for variation.

19.This application was taken out during the pandemic when the Court was operating in a reduced capacity to accommodate the needs for social distancing. Many applications were dealt with by paper disposal. The fact that an application is dealt with on paper does not mean that the party is not heard. For example, nearly all applications for leave to appeal are dealt with by paper disposal. The hearing was not vacated “on the whim of the Petitioner” as alleged. In fact, the Petitioner made no submissions and only the submissions of the Respondent were considered.

20.Costs is a matter of discretion. Normally costs follow the event and that was what this Court ordered.

21.By reason of the above mentioned matters, the intended appeal has no reasonable prospect of success and there are no other reasons in the interests of justice for the intended appeal to be heard. The application for leave to appeal is dismissed, with costs to the petitioner to be taxed if not agreed.

Both the Petitioner and the Respondent acting in person