Npyj v. Smrc
Read the full judgment text of FCMC 9098/2018 on BabelCite. This Family Court judgment before Grace Chan.
Matrimonial Causes – Transcript Application – Order 68 RHC – Abuse of Process – District Court – Whether transcript of urgent hearing available where no oral evidence given – Previous request rejected – No order as to costs
Legal issues: Order 68 RHC applicability · Abuse of process · Relevance of transcript
Outcome: Husband's summons dismissed
Cites 1 case
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FCMC 9098 / 2018 [2023] HKFC 102 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION MATRIMONIAL CAUSES NUMBER 9098 OF 2018 -------------------------------
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----------------------- DECISION ----------------------- The application 1.In October 2021, this case, originally docketed in my court, was transferred to the court of HHJ Pang (now Deputy District Judge Pang) (“Trial Judge”) for trial of various children’s summonses taken out by the respondent husband[1], as well as the final ancillary relief trial. 2.It is understood that the trial of the children’s summonses took place before the Trial Judge in late 2022, with judgment reserved. [2] 3.Now before me is a summons taken out by the husband on 16 January 2023 that either the transcript or the audio recording of the hearing held on 4 May 2021 before this court (“Hearing”) shall be made available to him upon his undertaking to pay the fees. 4.By my case management order made on 31 March 2023, I directed that his summons shall be dealt with by way of paper disposal. I set the time table and requirements for filing of written submission. He filed his written submission on 21 April 2023. The petitioner wife has not filed any written submission. Urgent hearing of 4 May 2021 5.The Hearing was fixed by me upon an urgent application by the husband for immediate removal of the children of the family, namely two daughters then aged about 12 and about 10 respectively, to the UK from 4 to 18 May 2021 to attend the funeral of their paternal grandfather which was scheduled to take place on 9 May 2021. 6.At all material times, both Hong Kong and the UK, and in fact most of the countries over the world, had put in place travel restrictions and quarantine requirements due to the Covid-19 pandemic[3]. There was no direct flight between Hong Kong and the UK. 7.His urgent application was called at around 11.55 am on 4 May 2021. The husband, himself not present since he was in the UK, was legally represented in the Hearing. 8.It was submitted on his behalf that he proposed that the wife should apply for the British passports of the daughters on an urgent basis, arrange for Covid tests be done on the daughters, pack their belongings and then put them onto the next available flight with KLM at 8.15 pm on 4 May 2021 (which was about 8 hours away from the Hearing) on “unaccompanied minor service” from Hong Kong to Manchester where he would pick them up himself. 9.The said KLM flight was an indirect flight which would stop-over at Bangkok and Amsterdam before it landed at Manchester. The whole flight would take more than 21 hours. 10.During the Hearing, the wife revealed that the British passport of the younger daughter would expire within 2 months, whereas the British passport of the elder daughter had long expired for 2 years but she had applied for a HKSAR passport for the elder daughter. [4] Besides, she objected to the application for a number of reasons. For the purpose of this decision, there is no need for me to set out her reasons for objection. 11.Upon hearing from the parties, I dismissed the husband’s application with extempore reasons provided. Simply put, I was of the conclusion that the proposed urgent removal to the UK was not well-thought and/or arranged. The quarantine requirements and the banning of direct flights between the UK and Hong Kong would adversely affect the schooling and examination of the daughters, but was chronologically unable to serve the reason that the husband relied on in his urgent application, namely for the daughters to attend the funeral of the paternal grandfather. According to the proposed KLM flight of the husband, the daughters would arrive Manchester on 5 May 2021 (local time) and the earliest day they might take the private Covid test was 10 May 2021, by which time the funeral of the paternal grandfather would have finished. 12.Neither party has sought leave to appeal of this decision. Discussion 13.For the purpose of this application for transcript or the audio recording of the Hearing, the husband has filed a hearing bundle, in which he purportedly included his 130th affidavit (dated 28 October 2022) and 132nd affidavit (dated 7 November 2022). However, according to the court’s document index, these 2 affidavits have never been filed and thus does not form part of the court documents. It is thus procedurally wrong for the husband/father (who has legal qualification) to attempt to include documents not formally filed with the court through the back door by including them into the hearing bundle. In any event, I cannot see the relevancy of his 132nd affidavit, as it is expressly deposed therein that the said affidavit is “in support of [his] Summons re [his] application for substituted services of certain Writs of Subpoena.” 14.Pausing here, the court also wishes to point out another concern on the procedures. By his letter dated 28 April 2023, the husband wrote to the court and enclosed a summons dated 28 April 2023 seeking leave to file his 145th affidavit. A copy of his 145th affidavit was also attached. As the court will not deal with any application of this kind by way of merely a letter, and in order to save court’s time and costs, the court has found it unnecessary to reply to this letter.[5] Yet, strangely and for reasons unknown to this court, the husband/father later filed his 145th affidavit on his own accord on 4 May 2023, without taking out any formal application. 15.The court is not bound to consider any court documents or affidavits not formally filed. 16.Be that as it may, the husband suggests in his written submission that the transcript of the Hearing is relevant to prove that the wife had lied to me and the Trial Judge. According to the report letter from his solicitors acting for him in the Hearing[6], the wife allegedly informed me that since she was not a British national, she could not renew the passport for the elder daughter, which is a lie because she told the Trial Judge that she renewed the passports of the daughters in the summer of 2021. 17.Upon due consideration, I will reject the husband’s application for the following major reasons. 18.First, the husband had in fact made previous application for transcript of the Hearing by way of a letter dated 20 September 2022. I rejected his request and issued a court note of 5 October 2022, with reasons provided. I already alerted him of Order 68 of the Rules of the High Court, Cap 4A (“RHC”) and the fact that no oral sworn evidence was received by me in the Hearing. 19.He has not lodged any appeal or judicial review (as the case may be) in respect of my aforesaid decision. 20.It is thus an abuse of process of him to revisit his request by way of this summons. 21.Pausing here, I note that according to the transcript provided by him, he told the Trial Judge during the trial on 16 December 2022 that his application to this court of the transcript “is still outstanding”. This is an erroneous remark, since this summons was not taken out until 16 January 2023. Further, he conveniently skipped informing the Trial Judge of the fact that his previous request by way of a letter for transcript of the Hearing was already rejected by me way back in October 2022. 22.Second, the relevant provision here is Order 68 of the Rules of the High Court, Cap 4A (“RHC”) which provides that,
23.Importantly, there was no oral evidence given in court by either party before me in the Hearing, and thus the said Order 68 does not apply (See also: Hong Kong Civil Procedure 2023, Vol 1, at para 68/1/1 on p1447). 24.In Lam Chit Man t/a Yat Cheong Electric Co v The Pacific Insurance Co Ltd [2001-2003] HKCLRT 156, the appellant appealed against a decision of Cheung JA refusing to provide transcript of the judgment delivered by another judge. In dismissing the appeal, the Court of Appeal commented these:
25.I am of the view that Lam Chit Man (supra) is directly on the point. I reject the husband’s submission that the case can be distinguishable. 26.Third, I do note from the transcript of the trial before the Trial Judge that the husband was allowed to produce his solicitors’ email to the wife [7] and then question was put to her as to whether she told the court in the Hearing that since she was not a British national, she could not renew the passport for the elder daughter. The crux of her reply is that she could not recall exact wording of what she had said in the Hearing, ie whether she said in a passive voice that the daughters’ passports could not be renewed, or in an active voice that she could not renew their passports. 27.In my view, the aforesaid email from his solicitors and the replies of the wife in the trial would be sufficient for the husband to make any submission on the issue of her credibility, if any. It is important to stress again that the wife did not give any sworn oral evidence in the Hearing. I thus fail to see how the transcript of the Hearing would help to advance the husband’s case, in particularly that the evidence and final submission of the trial before the Trial Judge in relation to the children’s summonses was already finished, with judgment reserved. 28.For all the matters aforesaid, I shall dismiss the husband’s summons. As both parties are unrepresented, I exercise my discretion to make a nisi order that there be no order as to costs (including costs reserved), which shall be made absolute 14 days after this decision.
The petitioner (wife) acting in person The respondent (husband) acting in person [1] The various summonses taken out by the husband in respect of the children of the family include but not limited to his application for variation of care and control to him, or alternatively his application for more extensive access to the children be granted to him. [2] The trial lasted for 16 days between 17/10/2022 and 16/12/2022, and on 22/12/2022. [3] According to the then official website of the British government, travellers, before they left for the UK,must provide proof of negative Covid test and book a Covid test for when they quarantine in the UK. Upon arrival, travellers must either quarantine in the place they were staying or in a managed quarantine hotel for 10 days. They might be able to end self-isolation early through the “Test to Release” scheme, ie to pay for a private Covid test, but the earliest day one could take the private test was 5 days after arrival. [4] According to the social investigation report dated 23/4/2021, the elder daughter had on 13/3/2021 requested the husband to assist her to renew her British passport. The social investigation officer had originally facilitated the husband and the elder daughter to meet on 20/3/2021 to do the task. However, the husband, after meeting the daughters on 19/3/2021 during an interview with the government clinical psychologist, was not able to agree on the agenda of renewing the British passport and thus the meeting of 20/3/2021 was cancelled. Later, through the facilitation of the social investigation officer, the elder daughter agreed to meet a designated professional (arranged by the husband to verify her identity) on 28/3/2021, but the husband replied that the designated professional was unavailable on 28/3/2021. He then counter-suggested 21/4/2021 which did not actualize. It seems that he had returned to the UK in April 2021 to see his dying father. [5] This court has previously informed the husband by letter dated 22 December 2022 that “unilateral letter or application by way of a letter will NOT be considered, or replied to in the future….” [6] Email dated 4 May 2021. [7] See footnote 6. | ||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under FCMC 9098/2018