Wyt v. Lc

FCJA 3034/2017

[2021] HKFC 174

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

JOINT APPLICATION

NO. 3034 OF 2017

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Coram: His Honour Judge I Wong in Chambers (Not open to Public)

Date of the 2^nd Applicant’s Submissions:  16 July 2021

Date of Ruling: 31 August 2021

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RULING

(Leave to Appeal)

(Paper Disposal)

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1.By a Judgment dated 2 July 2021 (“the Judgment”), the 2^nd applicant wife’s application to have the decree nisi rescinded pursuant to section 15C(2) of the Matrimonial Causes Ordinance (Cap 179) was dismissed. 

2.Dissatisfied with the Judgment, the 2^nd applicant applies for leave to appeal. 

3.In this Ruling, I shall, for the ease of reference, continue to refer to the 1^st applicant as “the husband” and the 2^nd applicant as “the wife”.  I shall also adopt the same nomenclature and abbreviations used in the Judgment.

Applicable Legal Principles

4.The relevant test governing applications for leave to appeal from the District Court is provided in 63A(2) of the District Court Ordinance (Cap 336) (“the DCO”):

“Leave to appeal shall not be granted unless the judge, the master or the Court of Appeal hearing the application for leave is satisfied that –

(a) The appeal has a reasonable prospect of success; or

(b) There is some other reason in the interests of justice why the appeal should be heard.” [emphasis added]

5.The Court of Appeal discussed the application of s 63A(2) in Sunny Tadjudin v Bank of America, National Association, HCMP No 691 of 2012 (Unreported, 29 June 2012) at [8] – [9]:

“8. Under section 63A(2) of the District Court Ordinance, Cap 336, leave to appeal to the Court of Appeal shall not be granted unless the Court of Appeal is satisfied that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the appeal should be heard. Counsel relies on both limbs in section 63A(2) in seeking leave to appeal.

9. Reasonable prospect of success involves the notion that the prospect of succeeding must be “reasonable” and therefore more than “fanciful”, without having to be “probable” (SMSE v KL [2009] 4 HKLRD 125 para 17). Furthermore, it is pertinent to bear in mind that even if there is a reasonable prospect of success on appeal, the court still retains a discretion whether to grant leave to appeal, although the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court’s exercise of discretion (Ho Yuen Ki Winnie & Ors v Ho Hung Sun Stanley & Anr. HCA 391/2006, 25 May 2009, A Cheung J para 3; and HCMP 1009/2009, 24 August 2009, para 22). [emphasis added]”

6.The wife’s case, in a nutshell, is that she was misled by the husband into consenting to divorce in two aspects.  First, she was misled to believe that she would be permitted to stay in the husband’s home until she is given public housing and CSSA.  In breach of the promise, she was expelled from home on 20 April 2018.  Secondly, she was misled into signing the Consent Summons that was subsequently made an order of this court upon the granting of the decree nisi. 

7.As I have already set out the parties’ case and their facts in the Judgment, I do not propose to repeat them here.  This Ruling has to be read alongside the Judgment.  Suffice to say at this point is that I found the wife a sheer liar.  At [75], I said,

75. I have heard and seen the parties in the witness box.  In assessing them as a witness, I have taken their age into consideration.  The husband was in his mid-70s and the wife in her 60’s.  Their memories might not be entirely accurate.  However, as I will demonstrate below, I do not find the wife a credible witness.  The wife was certainly not a senile retiree. She was a retired professional. According to my observation, she was alert and sharp.  On many occasions when being cross-examined by Ms Cheung, she was astute enough to be forgetful when it came to some of the questions. On many more occasions, in my assessment, she deliberately avoided Ms Cheung’s questions, such as those about her properties in the Mainland.  She even avoided her own counsel Mr Chan’s questions.  This prolonged the cross-examination.  She pleaded innocence by saying she was brainwashed and everything was plotted by the husband.  In my judgment, she was a sheer liar, making up her story along the way in the witness box.  As for the husband who was somewhat 10 years older than the wife, I find him generally a truthful witness.  His evidence is supported by that of Mr Tang, who, as I find, informed the court as to what had happened when the Consent Summons and the relating documents were signed.

8.I found against the wife factually on virtually all disputes of facts.  I rejected her assertion that she did not realize she was signing the consent summons that was intended to dispose of the ancillary relief upon their divorce.  Most importantly for the purpose of the present application, I found she had not been misled by the husband when she decided to make the application for divorce.

The Wife’s Grounds of Appeal

9.Mr Chan, who also appeared for the wife at trial, advances 3 Grounds of Appeal.  The husband has not lodged any submissions in opposition.

10.I will deal with the 1^st and 2^nd Grounds in one go.

The 1^st Ground

11.The wife said in ruling against her, I took the erroneous view that the husband did not misled her simply because the wife was in his view the first one to allegedly renege on the parties’ bargain.  Such a view is against the plain language of the said section 15C(2) which gives each party to a consented divorce the right to rescind a Decree Nisi when there is no true consensus and he/she was misled by the other party in relation to a matter which he/she took into account when deciding to present a joint application.

The 2^nd Ground

12.Further, the erroneous view ignores the fact that the parties’ consensus on the financial arrangement is part and parcel of a consented divorce.  The basis of a consented divorce is totally undermined when the husband while holding the wife to her bargain, decided to free himself from his obligations after a decree nisi has been granted.

Discussion

13.It is not in dispute that the wife was staying at the husband’s home until about 20 April 2018.  That was after the wife’s legal actions to try to have the consent order set aside and when she became very difficult and always made a scene at home. She demanded the husband for a further $2 million otherwise she would perish with the husband together (“一齊同歸於盡”).  The husband found the wife’s behaviour so threatening that he decided not to allow her to continue to stay at his home.

14.At trial, Mr Chan never sought to argue that it was not the wife who first reneged on the bargain.  All along, his argument was (and still is) that it did not matter that the own behaviour of the wife allegedly contributed to her expulsion or left the husband with no choice as he suggested. The husband was free to allow the wife to remain in the matrimonial home while resisting her action to set aside the consent order. The moment the husband expelled the wife, the misleading act was complete.  A belligerent wife was still misled if she was made a promise which was not kept. 

15.As I see it, the key is whether the wife’s situation falls within the ambit of the statutory provision, ie whether she has been misled by the husband, whether intentionally or unintentionally, about any matter which she “took into account when deciding to make the application for divorce” (emphasis added).

16.I found the following at [103] & [104] of the Judgment,

103.  I agree with Ms Cheung that the Written Promise was part of the bargain of the parties in respect of their divorce; the term regarding the wife’s staying at the husband’s home was part of the overall bargain.  I also agree with Ms Cheung that after signing the divorce documents the husband had kept on performing his part, specifically he did allow the wife to stay at his home until such point when there was a change in the circumstances arising from the wife’s breach of her own part of the bargain. 

104.  Against this factual background, I agree with Ms Cheung that it cannot be said that the husband misled the wife. The wife was the first to renege on the bargain when she applied to aside the Consent Order by starting a chain of legal actions and seek more money from the husband.  It does not lie for the wife to say that the husband had reneged when in fact she was the one who pulled the rug out from under their agreement first.  I further take the view that if Mr Chan’s argument regarding “misled” were correct, on the facts of the present case, the husband would be more qualified than the wife to rely upon this ground.

17.According to The Oxford English Dictionary (2^nd Edition), Vol IX, (Clarendon Press, Oxford), the word “misled” literally means “Led astray, misguided; ill-conducted”.  It is clear that on the above findings of facts (which are not being challenged) the wife was not misled by the husband when she decided to make the application for divorce, specifically when she attended TL & Co for making the joint application for divorce.  I fail to see how the wife could rely on her own misdeeds.  This was why I said if Mr Chan’s argument on “misled” were correct, the husband would be more qualified than the wife to rely upon this ground.

18.Mr Chan submits that the wife obviously wanted more than $700,000 under the original bargain. In my view, this is beside the point.  The wife has the right to have the consent order set aside according to the procedure laid down in Practice Direction SL 10.3.

The 3^rd Ground

19.Mr Chan submits that the court ought to have exercised its discretion in favour of rescinding the decree nisi because: -

(a)  The misleading act was not a trivial one; and

(b)  The overall harshness to the wife if discretion is exercised against the rescission of the decree nisi.

20.Mr Chan argues that the husband’s misleading act was by no means trivial. The wife was expelled from the matrimonial home and remained homeless after being promised that she could remain in it.  Further, the settlement terms are nowhere close to her entitlement under LKW v DD (2010) 13 HKCFAR 537.

Discussion

21.As I found in [104] of the Judgment, the husband did not mislead the wife; as such, there was no room for discretion to be exercised in favour of the wife.  This should be the answer to this ground.  In any event, assuming that the wife were “misled” as contended by Mr Chan, it has to be borne in mind that she was found to have lied through her teeth: see [95] of the Judgment.  Further, even on the wife’s own case, the harshness was not from the decree nisi; it was from her belief that she could get more money from the husband.  At trial, counsel did not address me on the assets owned by the parties and the potential entitlement of the wife, or for that matter, that of the husband’s, under LKW v DD, supra, nor was this issue the focus.  In other words, the “harshness” point was never argued, let alone established.  Nevertheless, as I said above, it is open for the wife to apply to have the consent order set aside following the proper procedure. 

Order

22.For the reasons aforesaid, the wife does not have a reasonable prospect of success in her intended appeal, nor is there some other reason in the interest of justice that the appeal should be heard.  The wife’s application for leave to appeal is dismissed.

Costs

23.As the wife has failed in her application, I see no reason why she should not bear the costs of it.  I make an order nisi that the wife is to pay the husband the costs of this application; such costs are to be summarily assessed by paper disposal with the following directions:

(1)  The husband’s solicitors do lodge and serve their Statement of Costs within 28 days;

(2)  The wife’s solicitors may lodge and serve a written opposition within a further 14 days, such written opposition shall not be more than 2 pages, at font size 13 and with 1 ½ line spacing; and

(3)  The husband’s solicitors may lodge and serve a written reply within a further 7 days, such written reply shall not be more than 1 page, at font size 13 and with 1 ½ line spacing.

TC Wong & Co, Solicitors, for the 1^st Applicant

Mr Edward MH Chan, instructed by James KL Sin & Associates, Solicitors, for the 2^nd Applicant