YCKS v MPKC

CAMP 97/2021

[2021] HKCA 1350

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 97 OF 2021

(ON AN INTENDED APPEAL FROM FCMC NO 5771 OF 2018)

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Before:  Hon Kwan VP and Yuen JA in Court

Dates of Written Submissions:  29 March 2021, 28 April 2021 and 31 May 2021

Date of Judgment:  20 September 2021

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JUDGMENT

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Hon Yuen JA (giving the Judgment of the Court):

1.1.  This is the application of the Respondent in FCMC5771 of 2018 (for convenience, referred to as “the Husband”) for leave to appeal from the Judgment (Ancillary Relief) of DDJ J Chow (“the judge”) given on 10 November 2020 (“the Judgment”).

1.2.  On 8 December 2020, the Husband had filed a summons in the Family Court for leave to appeal the Judgment, attaching grounds contained in 32 paragraphs.  The summons was determined by the judge in a Decision (Leave to Appeal) which was handed down on 15 March 2021 (“the Decision”).  The judge gave leave for some, but not all, the grounds¹, and granted a stay of execution of the Judgment pending appeal².

1.3.  On 29 March 2021, the Husband filed a summons in the Court of Appeal for leave to appeal in respect of the other grounds (“the summons”).  This has been opposed by the Petitioner (for convenience, referred to as “the Wife”).

1.4.sented³) have provided written submissions which we have considered.     

Background

2.  It is not necessary for present purposes to go into the detailed factual background.  The following is a brief summary of the material facts.   

3.  The parties were married in 2001.  They have 4 children (aged between 12 and 18⁴).  The Husband used to work in securities and investments, but was made redundant in 2012⁵.  The Wife has a degree in psychology but has not worked since 2000⁶.  The family (other than the Husband who has moved out) live in rented accommodation on Lamma Island⁷, although the Husband owns another property nearby which has been rented out (“the Lamma Property”⁸).  The children have been educated at international schools.

4.  In 2015, the Wife petitioned for divorce in FCMC8480/2015 on the ground of the Husband’s unreasonable behaviour.  In 2018, she filed a fresh petition in FCMC5771/2018 on the ground of 2 years separation. 

MPS Orders

5.  An order for maintenance pending suit (“the 1^st MPS Order”) was made by DJ Bruno Chan on 20 May 2016.  This was superseded by another order (“the 2^nd MPS Order”) made by DDJ J Chow on 27 April 2018.

6.  The Husband did not fully comply with the 2^nd MPS Order and was committed to prison by the judge on 20 November 2018.

Ancillary Relief

7.  On 21 February 2019, the Husband filed a summons to vary the 2^nd MPS Order.  On 23 April 2019, the Wife also filed a summons to vary the 2^nd MPS Order.  On 29 April 2019, the judge ordered both parties’ summonses to be heard “as the ancillary relief applications of both parties”⁹.

8.  The hearing took place over 3 days in November 2019.  Both parties were cross-examined.

The judge’s Judgment

9.  On 10 November 2020, the judge gave Judgment, which included the following orders:

(i)  the Husband’s summons to vary the 2^nd MPS Order was dismissed, with an order nisi that he pay the Wife’s costs;

(ii)  subject to the first charge of the Director of Legal Aid, the Husband do transfer the Lamma Property to the Wife at nil consideration within 30 days of the decree absolute, and pay all expenses, costs and taxes incidental to the transfer;

(iii)  the outstanding MPS in the sum of $2.68 million owed by the Husband be discharged;

(iv)  there be an order nisi that the Husband pay the costs of the ancillary relief proceedings, including the Wife’s summons to vary the 2^nd MPS Order and reserved costs.

10.  The judge also made a declaration pursuant to s.18 Matrimonial Proceedings and Property Ordinance Cap. 192 that the court was satisfied with arrangements for the children.

Summons for leave to appeal

11.  As mentioned earlier, the Husband filed a summons in the Family Court for leave to appeal, attaching grounds contained in 32 paragraphs.  Paragraph 31 was a conclusion in general terms and para.32 sought to reserve the right to file a further supplementary notice and/or grounds of appeal in due course, so in effect there were 30 grounds (in paras. 1-30).  

The judge’s Decision

12.  In the Decision, the judge summarized the grounds as §9(i) - (xxix), combining grounds 20 & 21 as §9(xx). 

13.1.  For reasons given in the Decision, the judge gave leave to appeal in respect of grounds 1, 22, 25 and 27. 

13.2.  Grounds 22, 25 and 27 relate to double-counting school fees for the two elder children¹⁰. 

13.3.  Although the orders set out in §28 of the Decision and the sealed order (filed on 9 April 2021) did not include ground 1, it is apparent from §§23-24 of the Decision that the judge did grant leave to appeal for this ground as well.  Ground 1 was in these terms:

“The Judgment was outstanding for nearly a year; the trial took place on 12 November 2019 until 15 November 2019 and the Judgment was only handed down on 10 November 2020; the delay of almost 12 months is not reasonable and rendered it more prone to errors and mistakes due to passage of time, making it unreliable”.

In §§23-24 of the Decision, the judge said this:

“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 judge 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, CACV112, 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 that 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”.

13.4.  That the judge had also given leave to appeal in respect of ground 1 is corroborated by §26 of the Decision where the judge stayed execution of the judgment pending appeal “in light of granting leave to appeal on two grounds abovementioned”.  In the context of the Decision, this must mean the double-counting ground (grounds 22, 25 and 27) and the delay ground (ground 1).        

Summons to the Court of Appeal for leave to appeal

14.  As mentioned earlier, the Husband filed a summons in the Court of Appeal in relation to the grounds for which the judge did not grant leave.

Discussion

15.1.  Having considered the filed documents (including both parties’ submissions), we decline to grant leave to appeal in relation to grounds 2, 4, 5, 6 and 8.

15.2.  In summary, ground 2 complains about the judge’s refusal to grant an adjournment for the Husband to prepare and seek legal representation.  Ground 4 complains about the judge’s refusal to include certain evidence in the trial bundle. Ground 5 complains about the judge’s refusal to allow him to file further evidence.  Ground 6 complains about the judge’s failure to compel the Wife to return financial documents to the Husband.  Ground 8 complains about the judge’s failure to give guidance to him as a litigant in person regarding necessary procedures. 

15.3.  These complaints all relate to procedural matters.  The ancillary relief hearing was set down on 29 April 2019 to be heard on 12 November 2019.  There was thus a period of more than 6 months in which the Husband could have filed summonses for orders to adjourn the hearing for him to seek legal representation, or to have leave to adduce specific evidence, or to order the Wife to produce specific documents.  No such summonses were filed.  Further, although as a litigant in person the Husband understandably would not be familiar with court procedures, he has not shown what specific procedures the judge has failed to explain to him, and what actual prejudice he has suffered as a result.

16.1.  The other grounds relate to the judge’s findings of fact.  Generally speaking, an appellate court would be slow to interfere with a trial judge’s findings of fact as he/she would have had the advantage of having seen and heard the witnesses giving oral evidence.  However, the judge herself giving leave to appeal on ground 1 is an acknowledgment that this advantage has been weakened by reason of the delay. 

16.2.  For instance, in §57 of the Judgment, the judge said: “The husband not having produced any proof to evince an effort to find work, he was only able to describe one instance of an alleged Whatsapp conversation with a female of a Taiwanese firm but turned out without employment offer”.  The judge seems to have been unaware of §5 of the Husband’s affirmation filed on 28 June 2016 in which he listed the companies to whom he had applied for various positions, and “MPKC-1-1” exhibiting 12 pages of email correspondence in respect of potential employments and projects.

16.3.  In these circumstances, this court has little alternative but to take the unusual step of giving leave even for grounds relating to the judge’s findings of fact, although those grounds couched in only general terms (grounds 12, 26 and 31) would not be allowed: Hong Kong Civil Procedure 2021, vol.1 §59/3/8. 

16.4.  Accordingly leave is given for grounds 3, 7, 10, 11, 13-18, 20, 21, 23, 24 and 28. 

17.1.  Ground 19 relates to financial assistance given to the children by the ESF.  In the Decision, the judge said this point had not been raised at the ancillary relief hearing.  That is also the Wife’s position.  On the other hand, the Husband claims it had been raised. 

17.2.  This court has not been provided with a transcript of the relevant part of the Ancillary Relief hearing (apparently the Husband has applied for the transcript, but it is not yet ready).  Accordingly, we will reserve our decision on this ground until such time as the relevant part of the transcript is provided for our consideration. 

17.3.  However, this should not delay the setting down of the appeal.  We would give leave to the Husband to file with this court the relevant pages only of the transcript of the Ancillary Relief hearing (where he claims the point in ground 19 had been raised) within 14 days of the supply of the transcript.  We will then decide whether to give leave for this ground.     

18.  Ground 29 is not easy to understand.  However, it has to be said that the Judgment itself was not clear on the point, and accordingly out of an abundance of caution, leave is granted for this ground.   

19.  As for ground 30, the law does not permit a “clean break” as far as maintenance of the children is concerned.  However, as for the position of the Wife personally, the Judgment is not clear on the point.  Accordingly, out of an abundance of caution, leave is granted also for this ground.

20.  Finally, we note that in the Husband’s written statement filed on 28 April 2021, he has attached a document entitled Draft Grounds of Appeal which includes two new grounds (33 and 34). 

21.1.  In ground 33, the Husband says that the judge should have recused herself due to her having previously determined various matters in these proceedings against him, and alleges that he had suffered prejudice. 

21.2.  This is the first time that this ground of non-recusal has been raised.  There appears to be no suggestion that the Husband had asked the judge to recuse herself before the hearing, and it is in any event well-established that the fact that a judge has determined previous applications against one litigant is not a ground for that litigant to allege actual or apparent bias. 

21.3.  There is also a general allegation of bias in ground 9, which is apparently based on the judge’s findings.  The mere fact that a judge has made findings (be they right or wrong) against a litigant is not a ground for that litigant to allege actual or apparent bias.

21.4.  Accordingly, leave is refused for both grounds 9 and 33.

22.  Ground 34 relates to a costs decision made on 15 March 2021.  It is clear from that decision that it is based upon the Judgment.  Accordingly, it logically follows that leave to appeal should also be given.  

Order

23.  For the reasons set out above, we give leave to the Husband to amend his Notice of Appeal in CACV113/2021 within 14 days of the date of this Judgment to add the grounds for which we have given leave in this Judgment (i.e. grounds 3, 7, 10, 11, 13-18, 20, 21, 23, 24, 28-30 and 34 in the Draft Grounds of Appeal attached to the Husband’s affirmation filed 8 December 2020) and we reserve our decision in relation to ground 19 pending receipt of the relevant pages of the transcript.  Costs of this summons will be in the cause of the appeal.

24.  In light of the judge’s order staying execution of the Judgment pending appeal, we direct that an early date be given for the hearing of the appeal.           

The petitioner, unrepresented, acting in person

The respondent, unrepresented, acting in person