Lky v. Ocf

FCMC 7215/2021

[2022] HKFC 274

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 7215 OF 2021

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Coram:  Deputy District Judge J. Chow in Chambers (by paper disposal)

Date of last written submission:  28 October 2022

Date of Judgment:  12 December 2022

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DECISION

(Leave to Appeal & Stay of Execution)

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Introduction

1.The respondent (“the husband”) filed a summons for leave to appeal on 14 October 2022 against my judgment on maintenance pending suit / interim maintenance handed down on 30 September 2022 (“the judgment”).

2.The background of the parties has sufficiently appeared in the judgment, as a recap, the petitioner (“the wife”) was an event planner and had become a housewife after the birth of the younger daughter. The husband is a salesperson of his family business and at the same time a shareholder and director of the same company.

3.The wife moved out from the matrimonial home with two daughters in June 2021, the custody issue of both daughters has not been resolved. At this stage, she sought an order for maintenance pending suit and interim maintenance for both daughters. I have so ordered the husband to pay a total of HK$69,778.36 which consisted of undertakings and direct payment to the wife.

4.The husband is also seeking an order for stay of execution of the judgment.

Applicable legal principles on granting leave to appeal

5.Leave to appeal shall not be granted unless the court is satisfied the appeal has a reasonable prospect of success or there is some other reason in the interest of justice why the appeal should be heard. (See section 63A(2) of the District Court Ordinance, Cap 336).

6.Reasonable prospect of success connotes the prospect of succeeding in the intended appeal and must be reasonable and more than fanciful, without having to be probable. An applicant is required to show more than just an arguable case, but he does not have to demonstrate the appeal will probably succeed. Even if the court takes the view that there is a reasonable prospect of success, it still remains a discretion as to whether to grant leave, though the fact that there is, ex hypothesi, a reasonable prospect of success would heavily influence the court in exercising its discretion. (See commentary of Hong Kong Civil Procedure 2021, §59/2A/4)

Discussion

7.With respect, the husband literally reiterated his submissions previously as his grounds of appeal here.

Ground 1: erred in deciding reasonable expenses of both the daughters

8.In the draft Notice of Appeal, the husband argues that I have wrongly assessed HK$69,778.36 being the reasonable expenses of both the wife and the daughters. The husband submitted I shall rely on the monthly expenses which is HK$20,180.67 for the whole family, by adding other expenses, the correct amount should be in the range of HK$46,000 to HK$47,000.

9.This argument is misconceived. The sum of HK$69,778.36 comprised of all expenses including, inter alia, rent, school fees and tuition fees whereas the expenses by electronic means did not cover all the items. The monthly expenses for three of them have exceeded HK$47,000.

Ground 2: forensic exaggeration of children expenses

10.The husband says the assessment of MPS / interim maintenance is excessive because the wife could have survived on a lesser sum during this period. The husband has only paid her a total of HK$179,900, the wife and the children are able to live on this amount.

11.It is not accepted that the Court has erred in exaggerating the children expenses. The husband by imposing sustainability test on the wife and the children is wholly inappropriate and it has no relevance in assessing the amount of MPS or interim maintenance. Moreover, I did not take the sum asked by the wife (i.e. HK$71,870 in the wife’s Form E) to the fullest but has discounted it by nearly 35% to HK$46,370 (see paragraph 28 of the judgment).

Ground 3: the wife has stable income

12.It is also not accepted that the Court has erred in finding the wife has no room for stable income, he relied a video clipping that the wife was working in a bistro shop. The wife has explained in her affirmation in reply that she has did so by helping out her friend on an ad hoc basis. Coupled with the fact that the wife arranged herself a hectic schedule to take care of both daughters on her own, I came to a finding that she has no room to achieve steady income of any kind (See paragraph 30 of the judgment). On an MPS application, the Court is entitled to err on the safe side in making such order.

Ground 4 & Ground 5: the husband’s father has ceased to provide financial assistance / husband’s ability to pay

13.Be that as it may, I do not accept the husband has no financial ability to pay. By comparing the financial status of both parties where the husband being the registered owner (or joint owner) of at least 3 landed properties in town, his financial status is overwhelmingly more solid than the wife. I have made it clear that whether those properties were held on trust for his parents has not been determined at this stage. It is appropriate to conclude the husband has ability to pay.

14.I do not intend to repeat the authority on point, KEWS v NCHC (2013) 16 HKCFAR, on the availability of resources that one has. (See paragraph 40 of the judgment).

Stay of execution

15.The general principle to order a stay of execution when seeking leave to appeal is well decided by Ma J (as he then was) in Star Play Development Limited v. Bess Fashion Management Limited, (6 June 2002, Ma J (as he then was)). This is still good law and the same principle was applied by DHCJ MK Liu in Progetto Jewellery Company Limited v. Lau Chiu Ying & anor (by original action; Joy Design Company Limited v. Progetto Jewellery Company Limited (by counterclaim) (HCA 2548 of 2014 / [2020] HKCFI 1835) as follows:

“2. The principles concerning stay of execution have been succinctly summarized by Ma J (as he then was) in Star Play Development Ltd v Bess Fashion Management Co Ltd[1]. The matters to be borne in mind include the following:

(1) The burden is on the party seeking a stay to make out a positive case to justify the indulgence, not for the successful party to justify why a stay should not be granted.

(2) The existence of an arguable appeal (that is, one with reasonable prospects of success) is the minimum requirement before a court would even consider granting a stay. If there is no arguable appeal, no stay would be granted, however exceptional the circumstances may be otherwise justifying a stay of execution.

(3) Even if the court is satisfied that there is an arguable appeal, the appellant must provide additional reasons as to why a stay is justified.

(4) If the suggested additional reason is the possibility of the appeal being rendered nugatory, it is incumbent upon the appellant to provide evidence to substantiate it. Where it is said that the levying of execution would result in financial ruin or serious financial consequences for the appellant, the court will require good evidence to support this contention, such as the production of accounts or other documents to justify the assertion. A bare assertion is unlikely to meet with much sympathy where more substantial evidence is available.”

16.The husband has failed to demonstrate an arguable appeal, I failed to see there are exceptional circumstances to justify a stay of execution. The husband did not give reason to justify an indulgence that stay should be granted, so in this regard, the application for stay of execution shall be dismissed.

Conclusion

17.The husband has no reasonable prospect of success in the appeal. I refuse to exercise my discretion to grant him leave to appeal. I also failed to see there are some other reasons in the interest of justice why the appeal should be heard.

18.I refuse the husband’s application for stay of execution.

Costs

19.I see nothing that I shall depart from the usual costs order. I so order the husband shall pay the wife’s costs of his summons, with certificate for counsel, to be taxed if not agreed.

20.I make the following orders:

(i)  The husband’s (the respondent’s) summons filed on 14 October 2022 be dismissed.

(ii)  Unless otherwise ordered, the husband (the respondent) do pay the wife’s (the petitioner’s) costs of the said summons, with certificate for counsel, to be taxed if not agreed.

(iii)  The wife’s (the petitioner’s) costs be taxed in accordance with the Legal Aid Regulations.

Ms Joyce HY Lee instructed by Messrs Wan Yeung Hau & Co. for the petitioner

Ms Sally SY Wong instructed by Messrs Ivan Tang & Co. for the respondent