Tjb or Jbt v. Dmt

CAMP 525/2021

[2022] HKCA 1223

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 525 OF 2021

(ON AN INTENDED APPEAL FROM FCMC NO 9861 OF 2014)

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BETWEEN

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Before:  Hon Yuen JA and B Chu J in Court

Dates of Written Submissions:  18 November 2021 and 26 January 2022

Date of Judgment:  23 August 2022

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J U D G M E N T

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

1.1.This is an application by the Respondent in FCMC9861/2014 (for convenience, referred to as “the Wife”)  for leave to appeal (out of time)  the Judgment (Ancillary Relief)  of I Wong DJ (“the judge”)  given on 20 September 2021 (“the Judgment”)[1].

1.2.The judge had refused leave to appeal for reasons given in a Ruling dated 3 November 2021.  The Wife then renewed her application in this court, which was filed on 18 November 2021.  The renewed application was out of time by 1 day, and the delay has been explained in an affirmation filed on 8 December 2021. Accordingly, we would extend time for this application to be made.

Background

2.1.The Petitioner (“the Husband”)  and the Wife are Nepalese.  They were married in 1973 when the Husband was 26 years old, and the Wife, nearly 16.  They have 3 children who are all adults.

2.2.The Husband worked for the British Army until 1984, when he retired.  Later, he worked in Oman, and came to Hong Kong in 1997 where he worked as a construction worker and in recent years, as a security guard[2].

2.3.The Wife was a homemaker when living in Nepal.  She joined the Husband a few years after he came to Hong Kong and worked as a dishwasher here, but said she has not been working since May 2016 due to ill health[3].

3.1.The Husband first petitioned for divorce in 2014.  The ground for divorce in that petition was challenged by the Wife.

3.2.The Husband then filed a supplemental petition in 2016 on the basis of 2 years separation since 2014.  This was not challenged by the Wife, and the parties were granted a decree absolute in February 2017.  Two months after the decree absolute, the Husband re-married.

4.1.At the time of the hearing before the judge (August 2021), both parties were living in Hong Kong.  The Husband has been living with his second wife who is in employment in Hong Kong.  The Wife has been living with their daughter who is single and in employment in Hong Kong.

4.2.At the time of the Judgment (September 2021), the Husband was nearly 74 years old.  At §§60-61 of the Judgment, the judge said of him:

“60. The husband will turn 74 years old in October. When the husband was younger he used to work mainly in the construction industry. In recent years, probably because of his age, he turned to work as a security guard. He last worked as a security guard in July 2021. At the time of trial [August 2021], he had just finished his one-year contract and was unemployed. His last remuneration package was about $22,000 per month. The husband is diagnosed with diabetes and has been on medication. He however fairly conceded that his health issues do not affect his work. The husband testified that his employer has asked him to sign the agreement if he would like to continue to work. Thus, it is likely that he would be able to work for another year.

61. I take the view that the Husband may be able to work for another year or so, yet this cannot last for long. The objective fact is he has long passed the normal retirement age. I have no doubt he has very limited earning capacity. Very soon he would have to rely upon the British Army pension that is now standing at about $4,600 per month and the financial resources that the family amassed during their heyday”. (Emphasis added).

The judge’s Judgment

5.In a clear and thorough judgment, the judge approached the issue of ancillary relief in accordance with the principles set out by the Court of Final Appeal in LKW v DD[4].

6.1.In the 1^st step of the LKW v DD exercise (identifying the assets and financial resources), the judge had to deal with the parties’ most substantial financial resources, which were 9 properties in Nepal.

6.2.Six properties were in the Husband’s name.  They comprised 1 lot with a derelict house and 5 agricultural lots in a remote area in the western part of Nepal without services or access.  They had been passed down to the Husband by his father.  The total area was about 96,360 sq ft[5].

6.3.Three properties were in the Wife’s name.  They comprised a 4-storey house in a suburb near downtown Kathmandu.  As the Wife had no income until she started her modest employment in Hong Kong, the judge found that the purchase money including mortgage repayments must have come from the Husband[6] (the Wife’s contention regarding the children’s financial contribution will be discussed later[7]).   The total built-up area was about 3,009 sq ft[8].

6.4.Earlier in the proceedings, the Family Court had given directions for expert valuations for these properties to be produced, but as can be seen from the Judgment, there were a number of difficulties with obtaining proper valuation evidence[9].  Eventually however, both parties produced valuation reports.

6.5.The Husband submitted a chartered surveyor’s report in February 2020 in which the Husband’s properties were valued at $15,585 and the Wife’s properties at $6,400,811, giving a total of $6,416,396.

6.6.The Wife submitted two civil engineers’ reports in August 2020 in which the Husband’s properties were valued at $1,051,617 and the Wife’s properties at $558,540, giving a total of $1,610,157[10].

6.7.As the makers of the reports were not called to give evidence, and as the judge found little analysis and no comparables in either side’s report, he directed that further comments and answers be provided by the experts according to 26 questions approved by him[11].

6.8.After considering the further comments and answers, the locations of the properties and other matters, the judge found the Husband’s valuation was “closer to the real situation”[12].

6.9.In the circumstances of this case, the judge was not required to ascertain the actual values of the properties because he found, for the purposes of the 2^nd stage of the LKW v DD exercise (discussed below), that even if the properties were worth only half of the valuation made by the Husband’s expert, the assets would still be more than sufficient to meet the parties’ needs[13].

7.The rest of the parties’ assets comprised modest bank balances and a sum with the MPF.

8.As far as the parties’ respective earning capacities were concerned:

-   the judge’s findings regarding the Husband’s earning capacity were set out in §§60-61 (see §4.2 above);

-   the judge found that the Wife had very limited earning capacity.

9.1.In the 2^nd step of the LKW v DD exercise (assessing the parties’ financial needs), the judge found that the Husband’s monthly needs came up to $12,000, or a capital sum of $888,000 for the rest of his life expectancy[14].

9.2.As for the Wife, the judge noted the Wife’s intention to return to Nepal after the conclusion of the proceedings.  On that basis and having considered other aspects of her case, the judge found that after her return to Nepal, her monthly needs would be about $6,600, or a capital sum of $1,584,000 for the rest of her life expectancy[15].

9.3.As noted above, the judge’s conclusion at the 2^nd stage was that the family assets would be more than sufficient to meet the parties’ needs[16].

10.In the 3^rd and 4^th steps of the LKW v DD exercise (deciding whether to apply the sharing principle, and whether to depart from equal division), the judge adopted the starting point of the usual 50/50 split on the ground that the properties were the fruits of a long matrimonial partnership.  Following on that, however, the judge decided that as the Wife was 10 years younger than the Husband and would need accommodation expenses upon her return to Nepal and the sale of her properties, the division should be in the proportion of 60% to the Wife and 40% to the Husband[17].

11.In the 5^th and final step of the LKW v DD exercise (checking the outcome), the judge decided that a clean break was possible and ordered that the properties be liquidated within 6 months and the proceeds split in the 60/40 proportion set out above[18].  The same applied to the other assets, so in effect the Husband should pay equalization money of $32,280 to the Wife[19].  As for the Army pension, that would be kept by the Husband as it had been deducted already in the judge’s calculation of his needs[20].

Grounds of appeal

12.1.The Wife raised 2 grounds of appeal in her draft Notice of Appeal annexed to the summons before this court, but an extra ground was set out in the body of the summons.  We will therefore consider all 3 grounds.

12.2.Ground (1)  was that the judge had no jurisdiction to order the sale of the properties when the children have interest(s)  in the properties and under Nepalese law the consent of the children would be required.

12.3.Ground (2)  was that the judge was wrong to assume that the Husband would not be working even though he gave evidence in court that his employer had made an offer to him of a job and he might commence employment soon.

12.4.Ground (3)  was that the judge did not give her proper guidance during the trial relating to her decision whether or not to give oral evidence.

Discussion

13.The judge recorded in the Judgment that the Wife had claimed in her Opening that Nepalese laws do not allow division of assets just between husband and wife, and the children had made financial contributions and do not allow division[21].

14.First, as to the question of fact whether the children had made financial contributions, it is not suggested that there was documentary evidence in support of this allegation.  Further and more importantly, as noted by the judge[22], the children were aware of the proceedings.  The daughter lived with the Wife, and one of the sons was the Wife’s McKenzie friend, assisting her with the presentation of her case.  Yet none of the children applied to join as interveners to assert rights in the properties.

15.1.Secondly, insofar as it is the Wife’s case that as a matter of law (irrespective of the children’s financial contributions), the parties to the marriage were not allowed to divide the assets without the children’s consent, we note that she said in her written statement filed under the present summons that she had “submitted documents stating the laws of Nepal” but none was included in the Application bundle.

15.2.It is well-established that foreign law must be proved by a duly qualified expert in the law of the foreign country.  Section 59 Evidence Ordinance Cap. 8 provides that a person who is “suitably qualified to do so on account of his knowledge or experience” is competent to give, in civil proceedings, expert evidence as to the law of a foreign country, irrespective of whether he has acted or is entitled to act as a legal practitioner there.  But the burden is on the party seeking to adduce that person’s evidence to prove that the person is “suitably qualified to do so on account of his knowledge or experience”.

15.3.In respect of the issue of expert evidence on Nepalese law:

-   the judge held “that there is not … expert legal evidence in support of this assertion nor has there been any application in this regard”[23];

-   this has been confirmed by the Husband’s legal representatives (who appeared below)  in their response filed under the summons before this court;

-    our perusal of the lower court file does not disclose any expert opinion on foreign law, or application to adduce such evidence;

-   insofar as the Wife is referring to her valuers’ reports she submitted in August 2020 which we have perused (although it is not in the Application bundle), there is nothing in the reports to indicate that the civil engineers are suitably qualified, on account of their knowledge or experience, to give expert evidence on whether the children have legal rights in the properties, nor did they purport to do so;

-   we have also perused the comments and answers given by the Wife’s valuers, and the contents do not touch on the issue of the children’s legal rights.

16.1.We would add that if the Wife wished to rely on such a law as alleged, she would have been aware, for a considerable length of time, of the need to adduce evidence of an expert in Nepalese law.  She would not have been taken by surprise by the possibility that the court would order the sale of the properties, as

-   she was legally represented from 24 October 2014 until 20 December 2019 (when Legal Aid was discharged);

-   a Transfer of Property order had been sought by the Husband in his Form 25 filed as early as 2 December 2016;

-   on 2-3 August 2021, the Husband’s open offers included transfers of the properties or part thereof.

16.2.Hence, the Wife’s legal representatives would have been aware for at least 3 years (from the Husband’s Form 25 to the date of their discharge)  that the transfer of properties would be raised in the proceedings, and she herself would have been aware of this for 5 years before the hearing.  If there is such a law in Nepal as the Wife claims, the burden was on her to establish it[24], and there has been more than adequate time to adduce expert evidence on it.

17.For the above reasons, there is no prospect of success in Ground (1).

18.1.Ground (2)  is not correct in that the judge did not assume that the Husband would not be working.  As can be seen from §§60-61 of the Judgment, the judge was well aware of the offer of employment, and accepted that “the Husband may be able to work for another year or so”, but found that “this cannot last for long.  The objective fact is he has long passed the normal retirement age”.  The judge was entitled on this objective fact to find that the Husband had very limited earning capacity.

18.2.Accordingly, there is also no prospect of success in Ground (2).

19.1.Finally, as to Ground (3), the Wife said this in her statement under the present summons:

“The judge failed to guide/instruct me that if I don’t give evidence in the court what effect would it have on my case and in the judgment, the judge criticized me many times for not giving evidence in the court. In the Ruling for Leave to appeal the judge went on to say that just because I filed the affirmations and documents properly in the court, I had assistance from someone who knew the law. Just because someone know how to write English does not make someone who can guide/assist me in legal matter. And even though my son was present in the court as McKenzie (I don’t know what that mean), my son was not allowed to speak and was never asked about his willingness to sell the land on which he also have claim according to Nepal laws”.

19.2.We have listened to the recording of the hearing on 12 August 2021[25] when the judge explained to the Wife the choice she had of giving oral evidence or not, and the implications on her case if she did not.  The judge explained that what she had said in her documents must be subject to testing for credibility and veracity by cross-examination.  She could elect to give oral evidence or not, but if she chose not to give oral evidence, the court would normally give no or little weight to the documents.

19.3.The recording fully corroborates §27 of the Judgment where the judge said:

“The wife remained firm in her decision not to give evidence even after I had explained to her that in the absence of her oral evidence, the truthfulness of her affirmation evidence and the veracity of her case could not be tested by way of cross-examination. In the circumstances, little regard should be given to her affirmation or any statements in the guise of evidence: see LWTC v PTH and Anor, FCMC 1648/2011 (unreported, 28 May 2012)  at [47] to [49]”.

20.The Wife was therefore adequately warned about the consequences of her election not to give oral evidence at the hearing.  What the judge said in the Ruling for Leave to appeal is irrelevant to this point.

21.As for the complaint about the son not being allowed to speak, that was in line with the usual practice as he was not a legal representative.  As long ago as Lobo v Kripalani[26], it was held that a litigant in person was allowed to have sitting with her someone (a “McKenzie friend”[27])  who could give her advice and help her with the presentation of her case, but it was still the litigant in person who had to present that case to the court.  A McKenzie friend does not have a right of audience, and it would only be in the most exceptional cases that a judge should permit that course to be taken.  In the present case, there is nothing that suggests that the judge should have taken that exceptional course.

22.Finally, as for the complaint that the son was not asked about his own willingness to sell the land, that presupposes that he had an interest in the properties under Nepalese law, which, as discussed above, the Wife had failed to prove by expert evidence.

23.For the above reasons, Ground (3)  also does not have any prospect of success.

Conclusion

24.1.Section 63A(2)  District Court Ordinance Cap. 336 stipulates that leave to appeal should not be given unless the court is 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.

24.2.As discussed above, none of the grounds has any prospect of success, nor do we see any other reason in the interests of justice why the appeal should be heard.

Order

25.The summons filed on 18 November 2021 is dismissed with an order nisi that the Respondent (Wife)  pay the costs of the Petitioner (Husband)  summarily assessed at $8,950.

The respondent, unrepresented, acting in person

Massie & Clement, for the petitioner