Mpy v. Wyc

FCMC 3297 / 2022

[2023] HKFC 151

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

NUMBER FCMC 3297 OF 2022

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Leave to Appeal

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Introduction

1.The petitioner (“the husband”) applies for leave to appeal by way of a summons filed on 30 June 2023 against my decision handed down on 16 June 2023 dismissing the husband’s application to transfer this proceeding to the Court of First Instance (“the Decision”).

Background

2.The background of the parties has sufficiently appeared in the Decision, briefly the husband and wife had a long marriage for more than 30 years, their children are all over 18 years of age. Their family business started from garment manufacturing and has extended prosperously to landed properties development.

3.The husband applied for an order to transfer the proceeding to the Court of First of Instance for reason of (i) huge amount of family asset; (ii) complicated factual and legal issues and (iii) wife’s consent to transfer. I dismissed the husband’s application with reasons in the Decision.

Applicable legal principles on granting leave to appeal

4.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).

5.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 adiscretion 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 2023, §59/2A/4)

Discussion

Ground 1

6.The precise ground of appeal is reproduced as follows:

“The learned judge erred in holding that the court can simply ignore the Respondent’s allegation that the Petitioner misappropriated the RMB535,000,000 from HTSP, and let the Respondent claim that amount as if it belongs to the Petitioner. This wrongly ignores the fact that this money (on the Respondent’s allegations) belongs to HTSP, and in any case HTSP would have a valid claim for the same against the Petitioner.”

7.With due respect, I fail to see there is such holding in the Decision. On issue of ancillary relief, the wife alleged the husband has misappropriated RMB 535 million from the matrimonial pot to HTSP company. The wife’s allegation has raised an issue on hidden asset on the part of the husband in this proceeding and such sum should be added back to the matrimonial pot if the wife succeeded. The rights of HTSP irrelevant here.

Ground 2

8.The husband further submitted,

“The learned judge further erred in holding that the rules against reflective loss would not preclude the Respondent from claiming the value of the RMB535,000,000.”

9.Again, such holding was not found in the Decision. I repeat paragraph 7 above.

Ground 3

10.Finally, the husband said,

“The learned judge erred in holding that the above company law considerations would only affect the Respondent’s ancillary relief claims if HTSP has commenced proceedings against the Petitioner in the Court of First Instance. The rule against reflective loss (and its associatied principles) does not depend on whether the company has initiated or will initiate a claim.”

11.I do not accede to this. The husband’s attempt to run the ancillary relief claim in the context of company perspective in the Court of First Instance, at this stage, is unmeritorious.

Conclusion

12.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.

Costs

13.I make an order nisi that the husband shall pay the wife’s costs of the summons, with certificate for counsel, to be taxed if not agreed. Such order shall be made absolute in absence of application to vary by inter parte summons within 14 days.

Orders

14.With reasons of the foregoing, I make the following orders:

(i)  The husband’s (petitioner’s) summons for leave to appeal filed on 30 June 2023 be dismissed.

(ii)  An order nisi that the husband (the petitioner) do pay the wife’s (the respondent’s) costs of this summons, with certificate for counsel, to be taxed if not agreed. This costs order nisi shall be made absolute in absence of application to vary by way of inter parte summons within 14 days from the date of this order.

Mr Bernard Man SC and Mr Cristian Tsang instructed by Messrs Haldanes for the petitioner

Ms Lily Yu instructed by Messrs Withers for the respondent