Wki also known as Iwkv v. Ckw also known as Wckw

FCMC 11528/2019

[2022] HKFC 133

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES NO. 11528 OF 2019

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Coram:  HH Judge C.K. Chan in Chambers (not open to public)

Mode of Hearing:  By way of written submissions

Date of Respondent’s Written Submissions:  9 June 2022

Date of Handing Down Judgment:  21 June 2022

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J U D G M E N T

(Leave to Appeal)

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1.This is a determination on the Respondent father (“the father”)’s application for leave to appeal against the orders, or more precisely, the alleged failure to make orders at a Pre-trial Review hearing (“PTR”) by this court on 26 May 2022.

2.This case has a long and complicated history. The current dispute is on the custody, care and control of the child of family, now aged 12. A trial has already been fixed for 5 days starting from 24 June 2022 at Court No. 40, before Deputy Judge T. Chow. As the Deputy Judge was not available to preside over the PTR, I have stepped in to conduct the PTR, which took place on the respective date of 12 April 2022 and 26 May 2022. At the second PTR (i.e. on 26 May 2022), there were allegations by the father that the Petitioner (“the mother”) had not served a full copy of her affidavit on him and the image of one coloured exhibit was “blurred and illegible”. Similar to what had happened in previous hearing, it was followed by heated and uncontrollable verbal exchanges between the parties making the continuation of a meaningful PTR almost impossible. As I saw it, the allegations of the father, even if true, were not so serious that they could not be rectified or properly dealt with by the trial judge in less than a month’s time. Therefore, I proceeded to give the standard case management directions for the parties’ and witness’ narrative affidavits to stand as evidence-in-chief, their attendance for cross examination, the experts’ attendance for cross examination and the time to be allowed for cross examination.

3.On 9 June 2022, the father took out the present summons for leave to appeal against the Orders that I made at the second PTR. In gist, what the father was saying was that his case would be prejudiced as he had not been provided with a full copy of the mother’s affidavit.

4.As the trial will start in 3 days’ time, I have decided to make a determination on the father’s application without waiting for the mother’s response. After considering the father’s draft grounds of appeal and skeleton submissions, I am of the view that the father’s application is without merits. The gist of the father’s application was that I have failed to investigate into his allegation that he had not been properly served with certain documents. Under normal course of a PTR hearing, I would of course try to spend some time on seeing whether such allegation was justified or not. However, that was not possible when the parties, albeit acting in person, decided to turn the hearing into a verbal fight. Their entitlement to the court’s time is not without limit if they have decided not to act in a civilised manner. After all, the matter will come up for trial very shortly and all such irregularities (if any) would be more conveniently dealt with by the trial judge. Therefore, I decided to exercise my case management powers to leave those matters to the trial judge.

5.I fail to see how the father would have a reasonable prospect of success in overturning such an exercise of the court’s case management powers. There is also no other reason in the interests of justice why the appeal should be heard. The father has failed to satisfy the test as laid down under s. 63A of the District Court Ordinance, Cap. 336 for leave to appeal to be granted.

6.The father’s summons for leave to appeal is hereby dismissed.

Costs

7.The mother has yet to respond to the father’s application for leave to appeal. It is my view that a proper order should be no order as to costs.    

The Petitioner acting in person

The Respondent acting in person